Potential for chaos in Iraq

AN independent team of five experts commissioned by US Secretary of Defence Donald Rumsfeld and led by the Centre for Strategic and International Studies recently reported, after spending 12 days travelling through Iraq, that “the next three months are crucial to turning around the security situation which is volatile in key parts of the country”.

The team’s report also said, “the next 12 months will be critical to the success or failure of the Iraq reconstruction effort. The potential for chaos is becoming more real every day”.

The report was published a few days before the killing of Uday and Qusay, sons of Saddam Hussein, which the US claims will sap the strength of the opposition forces. On the other hand, in the days following the killing of Saddam’s sons, the spate of violence and revenge against US forces has increased.

Developments have established beyond doubt that the American adventure is no longer supported at home or welcomed in Iraq. In the US, the rising rate of American casualties and the high financial burden of occupation of Iraq are rapidly increasing the unpopularity of the war. The cost of peacekeeping forces in Iraq is about four billion dollars a month, double the Pentagon estimates before the war. Another one billion dollars is being spent on operations in Afghanistan.

The Bush administration had provided $12 billion for the ‘transition period’ in Iraq, which was expected to last a few months, and a further seven billion dollars for reconstruction. There are clearly overruns and this is pushing the overall national budget deficit to $460 billion.

Only five months ago, the US administration had predicted a deficit of $304 billion, which was greeted with alarm. The consequences of the deficit being at least half as much as the earlier figure leave many in the financial world questioning the economic competence of the administration. Quite apart from this massive overrun, various efforts to stimulate the economy with large tax cuts and record low interest rates have not succeeded.

One main factor for the overrun has been the heavy cost of maintaining troops in Iraq. It had been anticipated that the troop strength would be reduced from a 150,000-strong force to about 40,000 peacekeepers. An additional 30,000 troops were expected to be supplied by other countries, but this has largely failed to materialize.

The number of US troops on the ground has been only marginally reduced from 150,000 at the peak of invasion to 145,000. Replacement troops are now required for longer periods. A date was given on three occasions for the return of the Third Infantry Division, but each time the promise could not be kept. This was the result of threats of protest marches by army wives at Fort Stewart, Georgia.

To the consternation of the Pentagon, US soldiers in uniform in the field told TV news services that Secretary of Defence Rumsfeld should resign. Although warned against making such statements, no action is known to have been taken on grounds of insubordination.

The issue of ‘sexing up’ intelligence to justly going to war against Iraq has now crossed the Atlantic from the UK, adding to the problems of the Bush administration. A great effort had indeed been made to persuade Americans that Saddam Hussein posed a dire threat, and with its possession of weapons of mass destruction as with its close links with Al Qaeda. Much was made at one stage of a small captured flying vehicle as constituting a serious threat, alleging it could be used to deploy chemical or biological weapons against US citizens.

Contrary to all this, a recent Washington Post/ABC opinion poll showed that 50 per cent of the Americans now believe that President Bush exaggerated the evidence for weapons of mass destruction (WMD). Support for the war has fallen from 73 per cent to a little above 50 per cent. A CBS poll found, that a majority of Americans would think the war was unwarranted if WMD claims were not substantiated.

The truth is that only a handful of neo-conservatives in the US administration believed that the post-conflict situation in Iraq would readily settle down. But this group dictated policy and action, and still does. Despite all their hopes, it has not yet been possible to establish security in Iraq. Until this is done, the country cannot begin to return to normal.

The US now seeks an end to its post-war predicament in Iraq in the capture or killing of Saddam Hussein. The sad fact, however, is that even fallen Iraqi dictator’s physical elimination will not radically alter the security situation in that country. The Iraqi people were undoubtedly happy to be rid of Saddam Hussein. But they are not happy being under occupation of a foreign power.

Today, American troops are nowhere as exposed to the risks of hostile attacks and harassment as they are on the streets of Baghdad. All forces inimical to them, and not just Saddam’s followers or Baathists, will take advantage of this exposure and vulnerability. American forces will then retaliate, and the spiral of killings will continue.

America was prepared to go to war against Iraq even if no other nation was willing to join the offensive. They were not deterred by the last-minute decision by Turkey to refuse to allow its territory to be used for the invasion. Donald Rumsfeld even said that if British forces did not join the coalition, so be it. Nobody doubts the capability of the US as a formidable war machine. American technological superiority is unquestionable. But there are limitations on military power. Moreover, once it has been exercised, there can be little recourse to anything else.

The American administration has, till recently, been almost dismissive of the UN in the context of Iraq. The world wanted to give the UN inspectors a little more time, but the US, supported by the UK, decided to proceed without a second Security Council resolution.

However emasculated, the UN is still the only international organization that can provide legitimacy to any action considered necessary in the interest of international peace, security or conflict resolution. It is one organization that can undertake an international peacekeeping role. First security has to be established, followed by normality in the day-to-day lives of the Iraqis. There is, moreover, the acknowledged need for the introduction of judicial, constitutional and electoral reforms in Iraq.

And then, of course, there is the question of the WMD. Only an impartial verdict from UN inspectors can settle this controversial issue. Despite all the efforts of the US and UK, the Iraq survey group, which has been established for this purpose, can be no substitute.

All these outstanding issues require active UN involvement and participation in the post-war Iraqi situation. Why is it the occupying forces led by the US are adamant in opposing full UN involvement? Is it because the US does not want to admit its earlier mistake in bypassing the UN? Or, is it because the US, supported by a compliant UK, wants to act without any check or the encumbrance of UN authority in order to secure Iraq’s oil resources for its own purposes? Is it because Washington wants to maintain a military presence in Iraq to control the fate of the Middle East? Is it because it wants to secure all reconstruction contracts for its multinationals? These possibilities would entail a far longer occupation of Iraq than is now projected, and would prove the worst fears of those who were opposed to the adventure in Iraq.

This military adventure and occupation has already played havoc with all rules of international law. If the occupation is longer than is absolutely necessary, the consequences will indeed be catastrophic.

Both President Bush and Prime Minister Blair appear to be losing the trust of their own people. Before the worse follows, they would be well advised to allow the UN under a fresh mandate to take charge of all peacekeeping functions in Iraq. Only then would security return, and the Americans cease to be a target of attacks in Iraq. Only then could funds from Iraqi oil be fully generated and used for reconstruction. Only then would life in Iraq begin to return to normal, with hope for judicial, political, constitutional and electoral reforms.

Oil wars in Russia

IN recent days, Russian police have taken files and hard disks from the offices of Yukos, the second-largest Russian oil company, and arrested one of the company’s chief executives. Raids have also been conducted in the offices of Sibneft, another oil company, which just happened to be negotiating a merger with Yukos.

Why Yukos? Why now? Whatever the legal explanation, it doesn’t answer the question. Because of the way Russian business and tax laws are written, it is virtually impossible to run a large company without violating some of them. Because of the way capitalism has evolved in Russia, it is also virtually impossible to name a large company whose origins do not lie in the murky post-Soviet era, when state assets were transferred through a variety of semi-legal means into private hands. If Yukos is guilty, then so is everybody else.

The attack on Yukos is not, then, purely a legal matter, but a political one too. In Moscow, some believe it is connected to Yukos’ stated support for politicians who oppose the president.

Still others believe the affair is connected to rumours of a coming merger between Yukos and Exxon or Shell. — The Washington Post

Crime, punishment & Shariat

THE Quran, the principal source of our Shariat, is primarily a book of moral guidance. Less than ninety of its approximately 6,500 verses convey the law; the law of inheritance being conspicuous by the amount of detail in which it is spelled out and the space it is given. The Prophet’s (pbuh) Sunnah is the second main source. But note that there is a great deal more to both of them than just the law. They are, for the most part, guides to good and clean living, covering a great number and variety of matters that are essentially mundane, such as the ones listed below:

Bathing and cleaning, eating and entertaining, chanting, song and music, jest, gossip, talkativeness, poetics, generosity, niggardliness, greed, anger, envy, quest for fame, arrogance, fear, deviousness, fortitude, forgiveness, travel, neighbourliness and friendship, marital bliss, modesty in dress and arrangements of personal appearance, birth, death and burial.

Injunctions relating to these matters are not law. They are to be followed by individual Muslims on a voluntary basis. The shariat does not, however, stop a Muslim state from converting some of them into laws, carrying penalties for violators. But it is clear also that if all of the many hundreds of injunctions were to be made into law, and enforced through the police power of the state, Pakistan would become a tyranny more oppressive than any that Muslims have ever known.

Criminal law, as contained in the shariat, covers only a few offences, which are listed below alongside the prescribed penalty in each case: (1) murder: death (qasas), possibly compensation (“diyyat”/ blood money); (2) armed highway robbery: death, possibly amputation of arm and leg, or exile, depending on the seriousness of the crime; (3) adultery (when one or both partners are married): stoning to death, possibly preceded by 100 lashes; (4) fornication (when partners are unmarried): 100 lashes; (5) false accusation of adultery or fornication: 80 lashes; (6) theft: amputation of hand; (7) drinking of alcoholic beverages: 80 lashes; (8) treason or rebellion against the state: death; (9) apostasy: death.

These penalties are called “hudood” (plural of “hadd”); those prescribed by a Muslim government in its discretion are called “taazir.” Acts outside the shariat’s contemplation in the context of legality may be declared unlawful. Offences and the relevant penalties in this scheme of things (taazir) may change from time to time.

The “hudood” were made part of the law of Pakistan during Ziaul Haq’s Islamization drive. But the law containing them, called the Hudood Ordinance, has been enforced only sporadically and selectively. In actual practice, the police officers concerned are the ones who decide whether the accused is to be prosecuted under the Hudood Ordinance or the relevant statute law. In any case, to the best of my knowledge, no thief has lost a hand and no one found guilty of armed robbery has been put to death. A few adulterers and adulteresses have been stoned to death in parts of the NWFP, but in many more cases the “hadd” has been set aside by the appellate courts.

If the hudood are already the law of the land, what do the ulema have in mind when they call upon the government to enforce the shariat? They haven’t said so specifically, but it is likely that they want to do away with the British-made system of law and courts operating in the country and reserve the whole field of law and justice to the shariat and Islamic judges (“qazis”). If so, they are seeking a utopia that has not materialized in Muslim history after about the middle of the eighth century. As we will see below, two parallel systems of law and courts have functioned since that time, with the shariat and the qazi courts increasingly yielding jurisdiction to statute law and a new magistracy.

The shariat itself appears to be extremely cautious in the matter of enforcing the hudood. It lays down stringent conditions that must be met before the commission of a crime and, then, guilt can be established. Hadd cannot be applied if there is even the slightest doubt as to either the commission or the guilt. Let us go to cases and first consider theft.

Before the happening can be called a theft, and the prescribed hadd invoked, the object allegedly stolen should have valued at least one quarter of a dinar (10 dirham according to Abu Hanifa); the complainant must provide proof of being its lawful owner; it must have been in his possession at the time the theft took place; it must have been kept in its usual place of custody and not just been lying around; it must have belonged to a person and not to the state or the community (unauthorized taking of money from the public treasury is not “theft” in the present context).

Guilt cannot be established, sufficiently for the hadd (amputation of hand) to be applied, unless two pious witnesses testify that they have seen the accused committing the crime; if he is a minor or if he is not sound of mind; if he has not taken the object in question secretly; if he was admitted to the place (instead of sneaking or breaking into it) where the theft allegedly took place; if he was forced to steal by adverse circumstances such as hunger or some other acute deprivation.

It is clear that most of these conditions cannot be met in the great majority of cases of theft in Pakistan. Pious witnesses, of whom we will say more shortly, cannot be found. Hadd cannot properly apply to the poor and the needy. Nor will it apply to those who rob state-owned banks (if they may be regarded as public treasuries and in whose funds the shariat says all of us, including the “thief,” have a share); those who manipulate computers to lift millions from one bank account and put it in another; those whom the owners or salesmen welcome into their department store and who lift articles while they are walking through the aisles. One may wonder also how many of us can produce proof (receipts showing the facts of purchase) that we are the lawful owners of things we possess.

Let us now turn briefly to adultery and fornication. The shariat requires four pious male witnesses to testify that they have all, at the same time, seen the act of “carnal conjunction” between the accused parties before guilt can be established. Leaving aside the extreme improbability of finding “pious” witnesses, one may be allowed to ask if any but insane lovers would have sex in the full view of inspectors. If they have any sense at all, they will probably retire to private quarters where their inviolable right to privacy would place them beyond the reach of any “muhtasib”. It is no accident then that no one was stoned to death or flogged for these crimes during the Prophet’s (pbuh) time or during the pious caliphate except on the basis of his or her own voluntary confession.

The want of witnesses, blessed with the requisite level of rectitude, tormented qazis during medieval Islam almost as much as it would trouble conscientious qazis in Pakistan, were the shariat to be enforced in its full scope and measure. This difficulty forced the medieval qazis to decline a great many of the cases that were initially brought to them, which were then taken to the “mazalim” courts that the executive arm of the state, chiefly the police, maintained.

These courts did not apply the hudood. Less exacting in evaluating the admissibility of available testimony, they awarded lesser penalties, called “taazir.” These penalties had not been standardized: their extent and severity varied from judge to judge, and from place to place. It should be added that the police, working with the “mazalim” courts, often used improper inducements to procure witnesses and resorted to abuse and torture in obtaining confessions from the accused.

Considering that the levels of corruption in Pakistan are far more forbidding than those prevalent in Muslim societies of a thousand years ago, what do we make of our ulema’s demand that all of the shariat be enforced forthwith? Do they not know that it cannot be done? It is not beyond the realm of possibility that they are merely playing games with Islam, just to sound good and gather support for their political goals. In any case, it would not hurt them to listen to one of their own leading lights, the late Maulana Abul Aala Maududi, on the subject.

Referring to the shariat’s penalty for theft in “Islamic Law and Constitution” (English translation, 1960), the Maulana wrote: “But this injunction is meant to be promulgated in a full-fledged Islamic society wherein ... the state provides for the basic necessities of the needy and the destitute ... wherein all citizens are provided with equal privileges and opportunities to seek economic livelihood ... In other words, the provision for amputating a thief’s hand is not meant for present-day society.”

At the level of doctrine, or that of “ijtihad,” one may wish to recall an intriguing observation made by Allama Iqbal in his celebrated work, “The Reconstruction of Religious Thought in Islam.” He noted that the penalties the shariat had prescribed were “in a sense specific to that people (Arabs of the Prophet’s time), and since their observance is not an end in itself, they cannot be strictly enforced in the case of future generations.”

At this point, I shall be content with citing the Allama’s insight, and will forego the formidable task of discussing it. In the article next Sunday, which will be the last of this series, we will see what guidance we can receive from the shariat in devising an acceptable system of governance.

The writer is professor emeritus of political science at the University of Massachusetts at Amherst, USA.

E-mail: syed.anwar@comcast.com

From politicians to the people

WELL past the golden jubilee of its independent existence, Pakistan is still grappling with many basic questions concerning the kind of society and state it wishes to be.

Of that the list may be long but the question of the greatest interest to the common man but the answer eluding him, is how to have a government which is effective and yet accountable and not authoritarian.

General Musharraf’s constitutional formula for good governance contained in the Legal Framework Order and the administrative remedy applied through the Devolution Plan both have now ended up on the political bargaining counter with an uncertain outcome.

From the press reports and the statements of the spokesmen of the negotiating parties it appears that the agreement in sight would in no manner change the substance of the contested amendments to the Constitution. Musharraf will remain president (in fact, his tenure will be extended from five to six years), he will be able to dissolve the parliament, the National Security Council will also stay but as a statutory body which the parliament could alter or abolish by a simple majority.

The loss of pride, or face, for Musharraf however will be enormous. He will owe his office not to the “democratic mandate” received through the referendum of April 2002 but to the vote of the bargaining religious groups in the parliament. Thus a liberal in desperate search of a safe haven is ending up in the lap of religious orthodoxy.

Such an end to the bargaining became inevitable once Musharraf chose to be flexible, the MMA pragmatic and the ARD (alliance for the restoration of democracy) would not accept him as president even for a day with or without uniform. The chief of the ruling Q Muslim League, Chaudhry Shujaat, who insisted that neither the LFO nor Musharraf’s presidency was negotiable would rather acquiesce than resign.

Our leaders, irrespective of the route through which they might have come into public life or the political or ideological label they carry, are once again demonstrating that no principle or sentiment should stand in the way when it comes to capturing power or holding on to it. Their stand on Kashmir is ‘principled’ but in power politics it is ‘pragmatic’. It should be the other way round. Their principles are only prolonging the agony of Kashmiris while their pragmatism has given them a short-cut to power. The outside world, which to us in the present-day context means just the United States, may squirm but not get perturbed over the ascendancy of religious orthodoxy in Pakistan as it is an important ally in the war on terror. But our own people may have to pay a price for straying farther away from the charter the founder of the country gave to its first Constituent Assembly which kept religion out of the business of the state.

The result of intrusion of religious interposition in statecraft with all its prejudices but without its spirit so far has been sectarian terror and distortion both of the economy and diplomacy to the disadvantage of the people. Now that the religious groups will have a dominant voice in the government, it could get much worse.

The life of the expedient compact may not be long and its influence on public life baleful but it has at least one redeeming feature: the constitutional protection given to the new local government and police laws through the LFO will be withdrawn. It will be then open to the provincial governments to amend these laws or repeal them altogether.

By promulgating the Police Order of 2002 under the Proclamation of Emergency and the Provisional Constitutional Order, the federation encroached on the provincial jurisdiction, for the law and order is a provincial subject and police is a provincial force. The Local Government Ordinance of 2001 was prepared by the federal government but each province was directed to notify it as its own law.

The provinces already chafing under the excessive control of the centre on their revenues and resources under the Constitution and on their administration through executive orders, view these laws as undermining whatever little measure of autonomy is left with them. The smaller provinces in particular view the two laws as a tool of political control, for, in their perception Punjab and the centre form one entity dominating both the civil and military establishments of the country. To that extent the laws of devolution have caused discontent in the provinces and further weakened the bonds of the federation, which could not be the intention of their authors in the National Reconstruction Bureau.

The most serious objection of the provinces is not to the procedural aspects of the local government and police laws but to their contents. The provincial governments tend to treat the district governments as the Trojan Horse of the federation. Their suspicion and resentment are not unfounded. Most district nazims seem to owe allegiance to the federal government and look up to it for support and protection against provincial incursions into their sphere.

The constant tussle for power and patronage between the provincial ministers and nazims presents a sorry spectacle. What better evidence there could be of this hostility than the nazim of Karachi accusing his own local government minister of sabotaging the municipal sewer lines only to defame him and the minister in turn accusing the nazim of giving all his attention and resources to the constituencies of his party (Jamaat-i-Islami) at the cost of the MQM areas to which the minister belongs.

The fundamental flaw in the local government and police laws enacted under the Devolution Plan is that they do not clearly define the separate jurisdictions and responsibilities of the provincial and district governments and control over the official establishments. The instances of ambiguity and overlapping are numerous but could best be illustrated by taking just one from law and order, the most sensitive and confusing of them all.

Under the Local Government Ordinance, district nazim is required to “perform functions relating to law and order in the district”. However, the Police Order of 2002, specifically excludes the administration, investigation and prosecution of crime from his purview. The only indulgence that the Order shows to the nazim is that he may visit a police station but only to see whether any person is unlawfully detained. That right cannot be denied to any citizen.

No nazim with the constraints imposed on him by the two laws could be held responsible for law and order in his district nor could be any other single official or agency. Besides a six-tiered police hierarchy over the police stations, this responsibility is spread, in addition to the nazim, over a number of safety commissions, coordination and complaint committees, the provincial and federal governments. Even if a nazim were to read and interpret his powers through the long text of the Police Order, he would be unable to exercise them for he has no hierarchy of courts and preventive laws to back him.

The prime minister wants the full implementation of the police reforms within two months. He should have paused to reflect how, what could not be done in two years, would now be done in two months and, secondly, whether any benefit has flowed to the people from the reforms that have been implemented already.

The more mundane side of the Devolution Plan, ignoring the propaganda rhetoric about it, would need a lot of the prime minister’s time once he has extricated himself from the morass of the LFO. That was for the politicians, this would be for the people.

UN role is crucial

THE United States admitted a mistake last month and installed an Iraqi council as the public face for the occupation government. That was a good political move, but weeks late. Now Washington needs to admit another error: freezing out the United Nations.

It’s past time to get that organization’s experienced peacekeepers and nation-builders into Iraq in substantial numbers. A large UN presence does not guarantee success — the formation of a broadly representative, independent Iraqi government within a few years. But without major help from the UN and from other nations, the United States could end up stationing more than 100,000 vulnerable troops in a hostile land for years longer than planned and at enormous cost, in blood and treasure.

On April 8, the day before US troops pulled down Saddam Hussein’s statue in Baghdad, President Bush and British Prime Minister Tony Blair declared that “the United Nations has a vital role to play in the reconstruction of Iraq.” The next day, Secretary of State Colin L. Powell said, “The UN is very important to the process.”

But three months later, the UN is largely invisible in a land where it is sorely needed. Powell said last week that he was talking with other countries about winning “more of a mandate from the United Nations.” Bush administration concessions are overdue to get help from a body that opposed the war. India demonstrated the stakes when it declined to send 17,000 troops to Iraq without UN authorization. Other countries also have demurred.

Thousands of 3rd Infantry Division soldiers who were expecting to be back home at Fort Stewart in Georgia by September were told their Iraq stay would be extended indefinitely. — Los Angeles Times