America's exit strategy

The appointment of Pakistan's ambassador in Washington, Ashraf Jahangir Qazi, as the UN secretary-general's special representative for Iraq is more than a recognition of the eminence of one of Pakistan's top diplomats.

At a time when the US is bogged down in Iraq, with constant loss of lives that does no good to President Bush's bid for a second term, there are high expectations in Washington that somehow, this appointment will provide an exit strategy for the beleaguered superpower.

Deputy secretary of state Richard Armitage has visited India and Pakistan to try to persuade them to send troops to Iraq to provide protection to a renewed UN presence that is critical to the exit strategy.

Though President Musharraf has agreed to release ambassador Qazi within two weeks, it is not certain when he will be able to proceed to Baghdad, and will be obliged to start functioning from Amman, in Jordan, where the UN office for Iraq is currently located.

UN secretary-general Kofi Annan pointed out that the Security Council's resolution passed in June linked the UN's taking up the responsibilities of arranging elections, drawing up a new constitution and helping reconstruction to "circumstances" being conducive.

The resolution had also called for a special force, estimated to number 4,000 soldiers to protect UN personnel and facilities. The countries approached to provide contingents included Azerbaijan, Georgia, Nepal, Pakistan and Ukraine.

Ambassador Qazi's appointment was announced two weeks after the transfer of sovereignty to an interim government. The final list from which his name emerged also included Salman Haidar, former foreign secretary of India, and Surin Pitsuwan, former foreign minister of Thailand.

The names of several other candidates who were considered were withdrawn, after their families objected to the risks involved. The element of personal risk is only one of the hazards.

Given the intensity of the uprising in Iraq, attributed to the Baathists and Islamic jihadists who have entered the country, there exists a firm determination not to let the US off the hook.

The US invoked the role of the UN in a bid to gain greater international support for its intervention, though the grounds cited for the pre-emption have not been established either in the US or Britain.

Both Bush and Blair are coming under strong criticism for tampering with the intelligence reports to justify resort to military action.With the election campaign in the US hotting up, and the popularity of Mr. Bush declining, the ruling party is in urgent need of some relief, in the form of lessening of insurgency, and of improvement in the overall situation in Iraq.

Earlier efforts to introduce troops, even from Muslim countries, such as Turkey and Jordan, had not succeeded, and in fact the contribution in the form of troops from coalition partners has been falling. The result has been a rising number of US casualties.

With polls set for November, the Bush administration is desperately looking for signs of progress in the Middle East, to rescue its image. The US public continues to be traumatized by the 9/11 experience as the department of homeland security continues to play up evidence that the threat of terrorist attack is always present, and may be greater as the election approaches.

However, some silver lining in Iraq is badly needed, and the renewed involvement of the UN offers the best hope. Though the UN did not authorize the US to resort to force in Iraq, many analysts regard the world body as being a virtual tool of Washington.

The destruction of the UN office in Baghdad in August 2003, in which the secretary-general's representative, Viera de Mello, was killed, reflected this attitude, and the secretary-general decided to withdraw the UN presence in Iraq, since the security of UN personnel could not be guaranteed.

Though the latest resolution of the Security Council passed in June 2004 states that the UN personnel will be stationed in Baghdad "as circumstances permit", the secretary-general will come under pressure not to postpone the deployment of the UN personnel indefinitely.

Therefore, a formal approach by the US to provide troops for the security of the secretary-general's representative is only a matter of time, for only then can the UN play the role envisaged for it.

It would take a highly favourable turn of events for this exit strategy to succeed. The deep hostility towards the US, based partly on its support to Israel, and partly on its imperial aims in the region, has to be mitigated, and such a change does not look likely under the Bush regime.

Even his "Greater Middle East" plan is a thinly disguised move to impose pro-US regimes in the region, the basic strategic goals of guaranteeing Israel's security and controlling the energy resources remaining constant.

The interim government in Baghdad is functioning under US protection. Can one visualize a UN presence that would carry out the purposes of holding elections, writing a constitution and utilizing aid for the reconstruction of Iraq? The US is clearly anxious to reduce its military involvement, and persists in relying on the build-up of Iraqi security forces to suppress terrorism and crime, and to create conditions in which some visible improvement is possible in the life of the Iraqi people.

Washington expects that the forces sent for the protection of the UN staff will have greater acceptability, and will not meet the negative response to offers of troops by Turkey and Jordan.

Some analysts believe that the Iraqi insurgency is not restricted to the Baathists and "Islamists" but has assumed the character of a national uprising. Many US specialists think that the ethnic divide between the Kurds in the North, the Sunnis in the middle and the majority Shias in the South can be exploited to fragment the insurrection, and that the great majority of the Iraqis want a return to normal life.

One would have to wait and see if this new exit strategy can work for the US. The chances of a Bush re-election are somehow seen linked to two developments, in which Pakistan is being expected to play a major role. One is the capture of Osama bin Laden, who may be hiding in the mountains on the border of Pakistan and Afghanistan.

The other is the success of the initiative to involve the UN in Iraq, and the appointment of a senior Pakistani diplomat as the representative of the UN secretary-general in Iraq again places high expectations.

The sending of a contingent of Pakistani soldiers to protect the UN representative will expose them to local challenges, as well as to accusations of being instruments of US imperialism. One cannot but recall an earlier period, when Pakistan joined the Baghdad Pact in 1955, over the strong opposition of Arab nationalists who had been mobilized against the West by Gamal Abdul Nasser of Egypt.

One hopes there will not be a polarization within the Arab and Muslim ranks, and that the ongoing efforts to increase the role and effectiveness of the OIC will succeed.

The writer is a former ambassador.

Will it be a fair trial?

Saddam Hussein who ruled over Iraq from 1979 to 2003 with the help of some close members of his family and a few trusted associates fled into hiding when the US-led forces invaded Iraq on March 20, last year. When the fallen dictator was captured by the US soldiers on December 13, US president George Bush announced that he would be brought to justice for his long tyrannical rule.

The former Iraqi president appeared before an Iraqi judge on July 2, to hear the charges against him which, inter alia, included the violent suppression of the Kurds, the Shia community and political dissidents, regardless of their political and religious affiliations, and launching of destructive wars against Iran and Kuwait.

The charges did not include possession of any weapons of mass destruction which was one of the main justifications put forward by the United States and its allies for their invasion of Iraq.

No such weapons were found in Iraq by the coalition forces and, as admitted recently by President Bush himself, there was also no collaborative relationship between Iraq and Al Qaeda, an allegation he had been making repeatedly.

Thus, the invasion of Iraq by the coalition powers, without UN Security Council's authority, was an act of aggression under the international law and the UN Charter.

It would have been more appropriate if President Bush had asked the United Nations to establish an international tribunal for the trial of Saddam Hussein. Richard Goldstone, a former chief UN prosecutor for the international criminal courts in the former Yugoslavia and Rwanda, also urged that an international court would present the fairest venue for a trial as the long dictatorial rule by Saddam had completely destroyed Iraq's judicial system.

A number of international human rights groups also pressed the United States to ensure that Saddam's trial is perceived by the Iraqis and the international community as independent and fair.

Regrettably, however, the United States paid no heed to the sane advice given to it about Saddam Hussein's trial and asked the Iraqi interim governing council (IIGC), to set up a special Iraqi tribunal for the trial.

For obvious reasons, this tribunal is seen as a front for the US and is not expected to meet the demands of justice, in accordance with the required international standards.

The UN high commissioner for human rights, Louis Arbour, has also expressed her concern in this regard and called on the international community to be very vigilant in ensuring that Saddam Hussein receives a credible and fair trial.

One of the universally accepted principles governing the trial of human rights violations is that the trial mechanism is not established by a regime that owes its existence to a foreign power. Thus, the tribunal set up by the US hand-picked IIGC for Saddam's trial, lacks credibility and could be challenged by Saddam Hussein on moral and legal grounds.

Moreover, under the Geneva Conventions the prisoners of war should be tried at the end of occupation and hostilities and, therefore, Saddam's trial in Iraq, where the occupation forces are still present and are likely to continue there for an indefinite period, was questionable.

British lawyer, Tim Hughes, has also expressed doubt over the legality of Saddam's trial by an Iraqi regime that does not enjoy full sovereignty. The trial of Saddam Hussein by a court which carries the stigma of being a US proxy is a tragic mistake.

It would satisfy none and may, in fact, help rehabilitate the Iraqi dictator who, as a result of the coalition powers' inept handling of the situation in post-war Iraq, has gradually re-emerged, not as a pariah, which he indeed was, but as a symbol of anti-US imperialism and a hero of pan-Arabism.

For half a century, the UN General Assembly underlined the importance of the establishment of a court to prosecute persons responsible for crimes against humanity, such as genocide or other crimes of similar nature.

The international criminal court, established in 1998, was a major step in providing a missing link in the international legal system and was a giant step in the history of mankind.

The charges framed against Saddam include genocide, war crimes as well as other human rights violations which are of serious concern to the international community and, apart from being violative of the international law, also fall under the jurisdiction of the International Criminal Court.

It would, therefore, be fair if Saddam is tried by this court which, if necessary, may set up a special tribunal in Baghdad for this purpose. The trial of Saddam Hussain presents an opportunity to make him accountable for his heinous crimes against humanity.

It may, however, be pointed out that the ruthless dictators, like Saddam Hussain, leave no evidence of their involvement in the brutal crimes committed by them. It would, therefore, be the Herculean task to prove Saddam's guilt.

The defendants also have the propensity of describing the evidence presented by the prosecution to prove their guilt as a web of deceit. To overcome this difficulty, it may be desirable to seek the assistance of the United Nations, the Amnesty International and other non-governmental organizations which have documented proof of the atrocities committed by Saddam during his long brutal rule and may serve as a corroborative evidence.

The writer is a former ambassador.

Judging the judges

Book launches can at times be an awful bore. Especially when some retired functionary who really has nothing to say, suddenly decides to inflict his memoirs on an unsuspecting audience in the mistaken belief that his work has some spurious sociological significance which would help to make the world a better place to live in. And so his moribund fancy must have one more grating fling.

But there are notable exceptions, like the one that took place last Monday when a former chief justice of the country, Justice Ajmal Mian, decided it was time to speak out and to set the record straight on a number of vexing legal issues that the public had heard about, but weren't quite sure how they ended. The hall was packed and studded by luminaries from the world of jurisprudence, and he certainly had a great deal to say on that occasion.

His autobiography is especially useful for the student of law as it contains many landmark judgments, often delivered in an agony of outraged propriety, which have not only affected the ineluctable trend of legal decisions, but also adversely affected the growth of the democratic process and contributed to the destabilization of society. It also contains notes on a string of cases which the student and the practising advocate would find useful.

Though he did his bit in trying to introduce some sort of order into a chaotic world, Justice Ajmal Mian's main contribution to the country and to the legal fraternity is that he was able to rehabilitate the flagging prestige of the supreme court which had suffered considerably at the hands of the military and the civilian executive alike.

This he did by rendering successive judgments on 20 contempt of court cases against the sitting prime minister and a former prime minister. He also dealt with the Eighth and the Fourteenth Constitutional Amendment., the freezing of foreign exchange, the imposition of the emergency and the anti-terrorist act..

I first came across Ajmal Mian in 1956 in one of the many rooms of the LSE library frequented by the students of law, when he was probably poring over the judgments of Lord Birkenhead or studying how Edward Carson put an end to forensic platitudes and irrelevant peroration from the bar.

At the time I didn't have the slightest idea that the dapper, quiet, well behaved and dignified student who sat under a lamp by the window and kept largely to himself, would one day be elevated to the position of chief justice of Pakistan.

On the few occasions when we conversed, and that too briefly, I was struck by his grasp of logic, and his gift for reducing a highly complex philosophical problem to its bare essentials. He is one of the most clear-headed people I have ever had the privilege to meet.

Regrettably, the LSE isn't mentioned in his autobiography, but the Windmill Theatre with its naughty girlie revue, which he visited along with Nawab Naqshband of Multan has been given a paragraph.

In the comprehensive index at the end of the book the reader learns that Justice Sajjad Ali Shah's name appears on 136 pages, which is not surprising, because Justice Shah was embroiled in a bitter conflict with a sitting prime minister which led to the storming of the supreme court.

It would be difficult to speak at any length about the judiciary in this country, without mentioning the two judgments of the Federal Court, the predecessor of the supreme court, which, in a sense, pointed the way for other 'injudicious' legal opinions and judgments which followed. All it really needed was for a precedent to be set. The rest was easy.

The precedent was, of course, the Maulvi Tamizuddin Khan case, which though rarely mentioned these days, is still regarded as the most notorious judgment in the annals of jurisprudence in this country. The case was exhumed and resurrected for the audience by the author to illustrate an interesting point.

Governor-General Ghulam Mohammed dissolved the constituent assembly of Pakistan and dismissed its speaker by his order dated August 5, 1954 on the ground that the assembly had failed to frame a constitution. Maulvi Tamizuddin Khan sprung into action.

He filed a petition before the Sindh high court under section 223-A of the Government of India Act of 1935, which was enacted by the constituent assembly of Pakistan conferring writ jurisdiction on the high courts and the chief courts. The Sindh chief court after allowing the writ petition declared the order of the governor-general illegal and unconstitutional.

Round two belonged to Ghulam Mohammad. He filed an appeal against the judgment of the Sindh chief court before the federal court of Pakistan. Their lordships upheld the appeal, setting aside the judgment of the Sindh chief court on the ground that section 223-A had not been validly enacted, as the governor-general's assent to it was not obtained.

The legal fraternity then held its breath as two great jurists crossed swords, metaphorically speaking. Chief justice Mohammed Munir represented the majority view which eventually prevailed. But there was a dissenting voice, albeit a powerful one.

Justice A.R. Cornelius held that an assent of the governor general was not required as the assembly was not only the federal legislative assembly but also a constituent assembly, vested with the power to frame a constitution for the newly created state of Pakistan.

In his view, section 223-A was validly enacted and the Sindh high court had jurisdiction to declare the governor-general's order as illegal and unconstitutional.

Justice Ajmal Mian expressed the opinion that if Justice Cornelius' view had been the majority one, the political history of Pakistan would have evolved quite differently.

The sort of military adventurism that the nation subsequently witnessed might have been averted, and there might not have been a need to invoke the doctrine of necessity in the military take-overs of Ayub Khan, Zia-ul-Haq and Pervez Musharraf.

He added that a contrary view was taken by the Supreme Court in 1972 when Yahya Khan imposed martial law; but the judgment had no impact because it was rendered when Yahya Khan was no longer in power.

The point which he finally managed to drive home was that out of 56 years of independence, Pakistan has been subjected to 18 years of military takeovers, and one of the casualties of this has been the constant insecurity of the tenure of the judges. The treatment of the judiciary by politicians and the executive, has at times also been highly capricious.

Justice Fakhruddin Ibrahim, a great advocate of democracy, who set the desultory tone for the book launch, did throw a spanner in the works by suggesting that not all members of the superior judiciary are what they seem.

He informed the audience about the time during the reign of General Zia-ul-Haq when the GOC in Sindh wanted to appoint a civilian governor from among the five sitting judges of the high court, and expressed doubts whether anyone would agree.

Imagine their surprise when all five judges agreed to serve. And imagine their surprise when they found out these were the same judges who in an earlier judgment had observed that military rule was not only anti-Islam but against the genesis of Pakistan.

The evening, however, belonged to Justice Javed Iqbal who delivered the keynote address. Articulate, witty and hard hitting he came across as the last ambassador of a dying breed of after-dinner speakers in the British tradition. The audience was riveted to the stage when he spoke and hung onto his every word.

In between wry comments about Justice Ajmal Mian's sanitary requirements in his lodgings in London, and a reluctance to compare Bill Clinton's life with that of Ajmal Mian, Justice Iqbal made some penchant observations about what needs to be done in the field of jurisprudence.

No government in Pakistan, wants an independent judiciary. Governments attempt to use the law o suppress their opponents. Only opposition politicians want an independent judiciary, but when they come to power they also want a pliable judiciary to settle scores with their opponents.

He felt, however, that the judiciary also needed revamping. Although the Judges Case attempted to eliminate political interference in the appointment of judges in the superior courts, it has accorded primacy to the views of the chief justices.

And if a chief justice turns out to be unscrupulous, power can be misused. The establishment of a commission for judicial appointments therefore needs serious consideration.

Justice Iqbal concluded by suggesting that the supreme judicial council should be activated so that a case of misconduct against a superior court judge could be investigated, and judges of the superior courts could be made accountable. This will certainly repair some of the damage done to a great institution whose independence is essential to the functioning of democracy.

Continuing deadlock in the NFC

A deadlock in the NFC has emerged. The president of Pakistan has chosen to assign this subject a low priority. If he had wanted, he could have sent a message to the participants to seek a 'just' settlement, which the federal government in its ultimate wisdom would have helped to reach one.

He could easily intimidate the members into abject submission. After all, no previous award represented the collective will of the people. They were undemocratic and at best a mirror image of the convoluted thinking of the mandarins of the ministry of finance.

Article 160(4) of the Constitution does not allow a role to the president except that he could specify, in accordance with the recommendations of the commission, the share of the net proceeds of the taxes which are to be allocated to each province.

The efforts of the recently removed prime minister were of no avail in breaking the logjam. As such the federal government extended 1997 NFC award given by a caretaker unrepresentative government to the detriment of the provincial interests.

The public perception that the provinces want 50 per cent share of the divisible pool and the federal government is prepared to give no more than 47.4 per cent is again a myth.

It is only one aspect of the story. After apparent generosity shown by the federal government of increasing the share of the provinces this time to 47.4 per cent, the subventions which were of the order of Rs. 33 billion in the last financial year are to be taken away, thereby leaving the provinces with a reduced share of only 43.7 per cent.

Pakistan happens to be the only country that applies the criterion of population for distribution of resources. Other countries do not apply single criterion like population but assign weight to multiple basis like fiscal efforts, backwardness and collection.

The whole gamut of issues surrounding the raging controversy over the NFC award reflects partly on the commission which has failed to announce it having been seized of the matter for the last over one year and partly on the federal government, which virtually holds all the cards.

If viewed in the overall context, what does the award represent? It represents the priorities of the nation and, therefore, corresponding allocation of resources.

It needs no gainsaying that the most wasteful layer of the government anywhere in the world and particularly in Pakistan is without doubt the federal government and the most productive from citizens' point of view is the local government. The provincial government lies somewhere in between.

Now what are our nation's priorities? They are defence and security, even if we have to live beyond our means. We have been living beyond our means for as long as one remembers.

The military rule has helped the armed forces keep the security issue right at the centre of national agenda to the exclusion of all others. Provision of education, health, roads, drinking water, disposal of sewage and protection of environment are way down the bottom of this list.

USAID sponsored a survey recently, according to which the public opinion reveals that more than half of those polled believe that unemployment and poverty are the biggest problems facing Pakistan and not Kashmir, which is officially characterized as the core issue.

According to this survey only 16 per cent believe that Kashmir is the biggest problem facing Pakistan. Inflation and education constitute a major problem for 1/3rd of the population.

This public opinion is not reflected in the government priorities. The opinion poll reveals, what should be obvious, that peoples' priorities are good governance and economic uplift.

They are opposed to becoming the torchbearers of Islamic 'ummah', which in any case has received a battering at the hands of the sole superpower in the name of war against terror.

The core issue for the people is that of governance. What is good governance? It is supremacy of law. The highest law of the land is the constitution, which is periodically abrogated by the military adventurers thereby destroying the fabric of society.

People want good law and order, adequate health care, universal education and water supply for all. These desires of the people have eluded them for the last 57 years and it seems that their ordeal is not yet over.

For the current financial year, our budget is of the order of Rs.902 billion. Gross revenue receipts estimated for the current financial year are Rs.796 billion as against 761 billion last year.

After paying Rs.239 billion to the provinces as their share, the federal government will be left with net revenue receipts of Rs.557 billion. The gap between the budget and net revenue receipts will be met largely through external receipts, euphemism for debt, privatization proceeds (selling our family silver) and heavy domestic bank borrowing.

Just to give you an idea the bank borrowing was Rs.74 billion as against an estimate of Rs.28 billion last year. Unless the people of Pakistan take control of their destiny and by some quirk of accident or through an organized effort manage to control the military, the outlook is very gloomy indeed and beyond redemption.

The provinces in the perception of public mind seem to be quarrelling about a greater share in the national pie. Each supports a basis, which best suits its particularistic cause.

Punjab favours population as the sole basis being the most numerous of the four provinces and Sindh at the other end demands distribution on the basis of source of collection claiming to contribute about 75 to 80 per cent of national resources. This fight about horizontal distribution of resources with the provinces at loggerheads, in the public mind has set the terms of the debate.

The fault lies with the federal government, which appropriates most of the resources leaving the residue for the provinces to fight over. The real question is of vertical distribution between the federal government and the provinces. That is what should define the scope of discussion.

Sindh generates bulk of the revenues and virtually ends up supporting other provinces including Punjab. It therefore demands a share appropriate to its contribution. It wants devolution of subjects like education, health, labour, home to the provinces and concurrent abolition of federal ministries and divisions that have nothing to do with the Federal structure of the Constitution.

Sindh seeks 46 per cent share of the GST that accounts for collection of Rs.40 billion. This is in lieu of the abolished octroi and zila taxes. There is a demand that the provinces should be allowed to borrow at market rates rather than at usurious rates charged by the federal government.

Over a period of 28 years, Sindh has been saddled with a loan of Rs.108 billion although almost an equal amount (Rs.90 billion) as interest has been paid off. Banks could easily lend at about 1.75 to 2.5 per cent thereby saving Sindh 14 per cent to 16 per cent in interest. It could also retire expensive federal debts. But the federal government would have none of it.

The province also claims and rightly so that it has to bear the burden of Punjabi and Pushtoon immigrants mostly living in Karachi and repatriating most of their income to their home towns. Almost Rs.14 billion goes on their upkeep. Most of the 500,000 illegal power connections in kutchi abadis of Karachi belong to these immigrants.

Gas development surcharge is outside the divisible pool and the federal government uses it to meet its shortfall that is perennial. Balochistan, which is a source of most of the gas mined in Pakistan, demands 68 per cent of this collection.

The federal government has been encroaching on taxes because it has failed to live within its means. Sales tax as a matter of principle is a provincial tax. Even octroi tax has been taken over thereby paralyzing the local councils making them dependent on the goodwill of the provincial and the federal governments.

It expands its income according to its expenditure. A family unit follows a different principle. It is forced to adjust its expenditure according to its income. It is true of the provinces as well as the local governments.

Distribution of resources is both vertical and horizontal. Vertical distribution is between the Federal Government and the provinces on the one hand and the provinces and the local government on the other. Horizontal distribution is among the provinces after the federal government has determined what it wishes to spare.

The current NFC award constitutes the basis of vertical distribution of resources in the ratio of 62.5 to 37.5 between the federal government and the provinces. Horizontal distribution is on the basis of population, which Punjab would dearly like to continue.

The composition of the NFC is another important matter. The membership extends to nominated representatives of the provincial and the federal governments. None of them represents an independent point of view. They are all interested parties and their discussion is bound to be a squabble among the interested parties.

In India, they don't have an NFC comprising nominees from 28 and odd states that would have made the whole thing an unmanageable affair. There the NFC comprises men of stature whose award is universally accepted and regularly handed down every five years.

The fight between the provinces on the basis for distribution whether population or collection or a combination of both is totally unnecessary and only serves the purpose of the federal government, which is determined to deny the provinces and the local governments their legitimate share in the national resources.

There is a very strong case for the provinces to band together to be able to confront the federal government unitedly for a just basis to be worked out for distribution of national resources.

It is the expenditure of the federal government that has to be capped, even if the provinces have to earn the ire of the almighty federal government. Finances are at the heart of the principle of provincial autonomy.