Kashmir: getting the UN involved

IT has been urged in these columns previously (January 5) that the Shimla Treaty has failed to improve the India-Pakistan relationship. Almost a third of a century has passed since the Treaty. Must we await the remaining two-thirds of a century as dumb hostages to concepts and categories which are inherently unworkable?

Both India and Pakistan are locked in rigid confrontational postures for so long that it makes it virtually impossible for either to climb down to reasonableness without risking a serious domestic backlash. A backlash negates the sine qua non of any government, which is to remain in power. In 1989, Rajiv Gandhi and Benazir Bhutto had reached a sensible agreement on the demilitarization of the Siachin glacier, a non-strategic wasteland, yet for fear of a backlash, Gandhi did not have the courage to go ahead with the agreement.

It has been suggested, therefore, that the Kashmir dispute be taken back to the Security Council by Pakistan in the interest of breaking the logjam in the subcontinent. The previous resolutions of the Council have not died a natural death as alleged in some quarters. Legally, the dispute remains very much with the Security Council.

It can only be reverted to the Council after the treaty is annulled or abrogated by Pakistan. This may sound too drastic a course, but peace with India remains our goal. This annulment is motivated not out of reasons of pique or hatred of India but, as in matrimony, a serious dispute is best handled not by the dominant partner but by an independent counsellor.

The Shimla Treaty, in pursuance of goals identified by the UN Charter, enjoins bilateralism “or any other peaceful means mutually agreed”. But, if there is no mutual agreement on “other peaceful means”, the treaty does not tell us how to proceed. It presupposes goodwill on either side, which is sadly absent. By contrast, the Indus Waters Treaty provides for arbitration; Shimla does not. The keystone in India’s Kashmir diplomacy is: no third-party mediation, facilitation, intervention or arbitration on this dispute with Pakistan.

Possession being nine-tenths of law, Pakistan is psyched out. It cannot sit with India under the aegis of the Shimla Treaty as an equal. A ‘final settlement’ in the Indian official lexicon of today is Pakistan’s vacation of Azad Kashmir or ‘sotto voce’ agreeing to accept the LoC as an international border. Kashmir is not a dispute, says India. It is for this reason that Shimla is seen here as an unequal treaty signed in the aftermath of a war lost by Pakistan. The clear words of Article 6 of the treaty are: “.... the representatives of the two sides will meet to discuss further the modalities and arrangements for the establishment of durable peace and normalization of relations, (and).... a final settlement of Jammu and Kashmir....”

Two questions arise. After Shimla, how do we deal with India? And the second question concerns likely reactions of the Security Council and western powers to a unilateral renunciation of the treaty by Pakistan.

As to the first, we declare our intent to discuss with India all issues except Kashmir on the basis of international law and equal sovereignty. India is likely to reject any talks if we abdicate Shimla, but sooner or later better sense will prevail. Let us for a change talk to India on an agenda deliberately excluding Kashmir. The business of mutual advantage in trade and tourism and settlement of less contentious issues will create the right atmosphere. If Kashmir is to be discussed between the two countries, it should be outside the framework of the Shimla Pact, that is, if so directed in pursuance of a new Security Council recommendation. This changes the atmospherics and parameters of the talks once the open skies of an international dispute are re-recognized by the Security Council.

For India, the collapse of bilateralism so craftily engineered by the treaty will have consequences for its diplomacy. India might threaten to abrogate the Indus Waters Treaty. As stated earlier, this agreement is protected by international arbitration. This and other threatening moves will be orchestrated not only by India but also by pro-India powers. Our bottom line is not unreasonable: we will talk to India on Kashmir or to anyone else in the context of the UN framework.

Now to the second part, the likely reactions in the Security Council. There will be much criticism in the Council to our notice renouncing the treaty. Pakistan diplomacy can and must prevail on the Council to accept that a threat of war, and a nuclear war at that, is by no means chimerical. It is up to the Council to decide whether or not it must live up to its responsibilities under the Charter.

In all likelihood, Russia will not veto a resolution that urges the two states to reopen direct negotiations under a resolution of the Security Council and calls upon Pakistan to cease support to Kashmiri and other Mujahideen crossing the LoC and close down training camps in Pakistan. This will be the price demanded by the Security Council permanent members to bring the dispute back on its active agenda. This price should be paid, but, under UN monitoring and supervision on both sides of the LoC. It will be our aim to move back to the period prior to the war of 1965. Remember a dying Nehru had sent Sheikh Abdullah to Islamabad in search of a settlement? The Security Council will be expected to take a series of actions such as sending observers to Kashmir, inviting the All Parties Hurriyat Conference (APHC) and all groups, including the Valley Pandits, as representatives of the Valley Kashmiris to sit as observers or participants during UN sponsored India-Pakistan talks, call upon India to permit human rights activists access to the Valley, and set the ball rolling to explore alternatives to plebiscite as a means of solving the dispute. If the Indians are seen by world opinion to be stonewalling, Kashmir will have regained world sympathy.

Pakistan will also be seen in a better light. The issue is no longer one between India and Pakistan as was the case in 1948-49, but it is to provide the restive Kashmiris of the Valley full freedom of choice, including independence guaranteed by India and Pakistan, an option denied by earlier UN resolutions.

We have in the past encouraged freedom fighters, and possibly continue to do so. Let the new government of Pakistan assert itself to take directional charge on Kashmir from our intelligence services. Kashmir is too serious a problem to be left to the khakis who have repeatedly failed to show either vision or wisdom — in 1965 (Operation Gibraltar), 1971 (Bangladesh), and 1999 (Kargil). We have to reach a level of transparency on cross-border movements, which will be certified by neutral observers. All actions of ours must be subordinated to an aim, which is the re-internationalization of the dispute.

The moral hectoring which India imposes on us is an old habit. The Americans may have forgotten the Indian moralizing and lecturing that they were subjected to during the cold war. Remember Krishna Memon’s nine-hour harangue in the UN defending the Soviet invasion of Hungary? Terrorism is the depraved weapon of the voiceless. Sadly, without terror, the world is not bothered to show any interest in any cause of freedom. Have the Indians never used terror? Did they not support the Mukti Bahini in 1971 and the LTTE in the 1980s and perhaps the Maoists of Nepal today? It all depends on which side of the bed you are born and when.

The writer is a member of the National Assembly.

Argentina’s new bailout

ONE year ago, as Argentina wallowed through one of the worst economic and political storms in its history, two outcomes were commonly forecast: Either its weak government would muster the strength to formulate and implement a stabilization programme approved by the International Monetary Fund, or the country would plunge into an abyss of hyperinflation, plummeting production and, possibly, political chaos.

In fact, neither has happened. President Eduardo Duhalde, who took office after three previous presidents resigned in short succession, has failed to develop a coherent plan for rebuilding Argentina’s financial system or restoring its prospects for growth. Yet Argentina has also avoided collapse: In the past few months the economy has stabilized, though at a level far below that of the 1990s, and there has been no renewal of mass unrest.

This minimalist muddling-through can’t last; at best it might serve until presidential elections are held and a new leader replaces Mr. Duhalde on May 25. In an attempt to make that outcome more likely, the Bush administration and several of its Group of Seven allies have strong-armed the IMF into signing an agreement that will roll over $6 billion of Argentina’s debt. It’s a risky manoeuvre that may backfire.

US Administration officials tend to see the new accord in political terms: as a good-faith gesture that could prove valuable at a moment when the various Argentine presidential candidates are hotly debating whether to continue cooperation with the international financial institutions.—The Washington Post

Barking up the wrong tree

WHILE validating the army take-over on the basis of the doctrine of state necessity and the principle of “welfare of the people is the supreme law”, the Supreme Court imposed certain restraints on the powers of the Chief Executive and also bound him down to fix a date for general elections 90 days ahead of the expiry of the three-year period, counted from October 12, 1999.

While opinion on the basic finding of the court justifying the extra-constitutional intervention by the army remains divided, as it has always been in similar situations in the past, an impression is now gaining ground that General Musharraf has done many things he was prohibited from doing but has failed to do what he was specifically required to do. This view has found a strident expression through the Bar Council and community of lawyers.

The mood of the Bar Council shows in its reported stand that raising an issue of constitutional importance before the judiciary in the present situation would be a futile exercise as it had ceased to be independent. Some in the council even contend that serving judges who were all made to take oath under the Provisional Constitutional Order cannot preside over the courts till they have been administered oath once again under the Constitution.

To restore the independence of the judiciary, the council has suggested the formation of a parliamentary commission to examine all the judgments delivered on legal and constitutional issues during the recent army rule. What legal weight the recommendations of the parliamentarians will carry and how they will be implemented, the council has not cared to explain. The parliamentarians, in any case, are too absorbed in securing their own positions of power and influence either in the government or in the opposition to spare time for this unprofitable diversion for which they are not qualified either.

The lawyers in the council are however being naive in assuming that in these times of stress and greed the parliamentarians will be more objective in their opinions than the judges are in their judgments.

Insistence on yet another oath for the judges is also misplaced. The conduct of a judge is shaped by his conscience and commitment to fair play and not by a few words ritually spoken. Being under the same oath, the judges are known and seen to act differently. The real need is for changing the criteria and procedures for the selection of judges and then to protect them from extraneous pressures and temptations rather than make them undergo one oath after another.

The lawyers feeling sore about the oath should contemplate whether the judgment of the Supreme Court in the case in question would have been any different had the judges not been made to take an oath under the PCO? One observation made in the May 12, 2002, Short Order of the Supreme Court deserving notice is: “Fresh oath ... does not in any way preclude the judges of this court from examining the questions raised in these petitions which have to be decided in accordance with their conscience and law”. The order then goes on to argue that by refusing to take the oath the judges would have only become a party to the closure of the courts resulting in chaos and denial of justice to all citizens.

One may still admire a judge who does not take oath in such circumstances but neither the character nor the judgment of the one who does is impaired thereby.

The people, the parliamentarians and the lawyers should be contending with questions, more substantive than the oaths, arising out of the actions of the Chief Executive and the prohibitory injunctions and positive directions of the Supreme Court. The courts, the parliament and the Chief Executive then could be called upon to ponder these questions and right the wrong where it has occurred.

The most important of all questions is: Has the three-year army rule promoted the welfare of the people or only exacerbated the very evils for which the Nawaz Sharif government was dismissed? After all, besides the doctrine of necessity, the principle which persuaded the Supreme Court to validate the army take-over, was salus populi suprema lex (well-being of the people is the supreme law). No judicial verdict may be sought but a national debate on it should make the people and institutions, including the judiciary and the army, wiser by now and in the future.

Another question could be: Have the Constitutional amendments resulting in the formation of the National Security Council conferring discretionary powers on the president and the governors, and introducing a new system of local governments detracted from federalism and parliamentary character of the Constitution? The view that the relevant provisions of the Legal Framework Order (which is now a part of the Constitution) have had such an effect is borne out by the new place the president and the governors have acquired in public administration and national life, overshadowing the assemblies, the cabinets, the prime minister and the chief ministers (who are the chief executives) together constituting the source of all legislative and executive authority.

The role of the president and governors in a true parliamentary system is little more than ceremonial. On the other hand, the district governments, created by a federal fiat, have detracted from the autonomy of the provinces which is a central feature of Pakistan’s federal structure.

The Chief Executive disregarded the Supreme Court’s direction by not announcing elections to the Senate along with the elections to the national and provincial assemblies. This omission, combined with many constitutional orders issued after October 12, has delayed the full restoration of the democratic order. The time given to the Chief Executive was no more than three years and that too primarily to bring the electoral rolls up to date and to delimit the new constituencies.

If the election process was to take more than 90 days to complete, the Chief Executive should have started it earlier, for the direction of the Supreme Court was “not later than 90 days” before the expiry of the three-year period of military rule. For this delay and for using the interregnum to promulgate new laws and decrees the Chief Executive owes an explanation to the Supreme Court.

The Bar Council and some other quarters do not expect a detached review of the Legal Framework Order by the Supreme Court because the sitting judges themselves are its beneficiaries in the way of a three-year extension in the retirement age. This may seem like taking a dim view of judicial integrity but to what other forum could they take their case? None, but to wait for a two-thirds majority in the National Assembly and Senate to undo the amendments. That would be asking for the moon.

To reinstate public confidence in the independence, integrity and competence of the judiciary, the lawyers should think of means other than vitriol or boycott. One such measure could be a change in the procedure by which the appointments of judges to the superior courts are made by a board and not by an individual. The president, who has been made the appointing authority by the LFO, can go as erratic and partisan as the prime minister did. Once appointed, a judge may be removed only if impeached and not by invoking a new version of doctrine of necessity. To help him remain independent while he serves, neither a sword should hang over his head nor a carrot dangled in front of him.

Now that the retirement age has been raised by three years, it should be made a rule of the Constitution that a retired judge will not be eligible for any paid job under the government. Only the litigant public and businesses may profit by his experience and he by their fees.

The public institutions needing men of law can have recourse to the vast pool of legal talent available in the country. The myth that retired judges are more impartial or less amenable to pressure in sensitive assignments has been exploded by the manner in which the referendums and general elections were conducted by the serving and retired judges in the past.

Forgotten detainees

THE US Justice Department started off the year with what it portrayed as a relatively clean slate in its terrorism investigation: Spokesmen announced last month that only six of the people detained in the post-Sept. 11 dragnet remain in US custody.

But that number is wildly misleading and takes advantage of a very narrow and technical definition of who counts as a detainee. In truth there are hundreds and perhaps thousands of immigrants, mostly Arabs and other Muslims, who would not be in detention but for the Sept. 11 attacks, and who are now wending their way through a capricious and choked-up immigration system. Because they are not classified as “special interest” immigration cases, they receive no particular attention and aren’t counted in the government’s terrorism figures.

One such forgotten detainee is Ansar Mahmood, a Pakistani immigrant we wrote about nearly 10 months ago. Mahmood is not counted in the Justice Department numbers, though by any reasonable definition he is a Sept. 11 detainee. He was picked up on suspicion of tainting the New York water supply and then almost immediately cleared by the FBI, which ultimately believed his story — that he had only been photographing the scenic mountains near Rochester, N.Y.

He had a green card and a good job. But because police inquiries uncovered that he had helped some illegal Pakistani friends find jobs, the Immigration and Naturalization Service (INS) put him in jail pending deportation, where he has been all this time.

Mahmood decided to fight his deportation. He had the help of a lawyer and a group of citizens in Rochester who have adopted him as their cause, including his old boss, the local who had pointed him to that scenic spot and the officials at the water treatment plant who turned him in in the first place.

Most of the Sept. 11 detainees don’t have that kind of support, don’t even have an attorney. Most of them give up and take the plane ticket home. But the hundreds of detainees immigration lawyers estimate are still in the system are likely to be cases somewhat like Mahmood’s, cases compelling enough to appeal. Now their time is running out, as Attorney General John Ashcroft recently ordered the INS to clear out its backlog by March.

Maybe it’s no big deal: one immigrant, or 100 immigrants, who ran into bad luck. All may have violated an INS regulation. But a message is sent by keeping Mahmood in jail, and by continuing more than a year later to scrutinize growing lists of Muslim immigrants — Pakistanis, Egyptians, Kuwaitis, students.

If the INS looks hard enough, it can find a technical violation by many if not most immigrants, particularly through the ever-shifting prism of the immigration bureaucracy. When those rules are enforced with exceptional zeal for a selected group, the message becomes: Terrorist or not, even legal or not, we’re better off without you. And that’s not true of people such as Mahmood.—The Washington Post

Separating fact from fiction

THE previous fortnight has witnessed two significant political developments, each of which has its own far-reaching consequences. The first was an oblique reference by the government which etched many of the benefits of military rule. The second was the prime minister’s partial support for the highly contentious Legal Framework Order.

As if the earlier tabloid supplement, ‘Three Years at a Glance’ was not enough, readers have now been blessed with a 166-page White Paper designed to impress upon the people that they were jolly lucky to have had President Musharraf in the driver’s seat for the last three years.

It is a very impressive, well put together document, replete with statistics, graphs and tables which, at first reading, look like one of management guru Peter Drucker’s successful marketing case studies. There are no dark storm clouds, just glimpses of northern sunshine. But when one enters the crevices between fact and fiction, there is a number of things that don’t quite gel.

To start with, the initial promise that the project would be totally objective, has not been kept. This carefully crafted document is a pot-pourri of tall claims and records of achievement which, on closer examination, are controversial, to say the least. And to top it all, there is not a single note of regret or admission that initial projections were wrong and that it was occasionally necessary to switch horses in midstream. What the authors behind this project have done, however, is to select those areas where there has been some kind of progress and swamped the achievement with a plethora of facts and figures.

One rather impressive statistic which usually warms the hearts of economic planners, is the figure for revenue collection. In 2001-2002 the figure was 403 billion rupees. This registered a jump of 97 billion rupees from the 1998-1999 period. But what the compilers of the White Paper have cheerfully omitted to mention is that early in 2000 a prediction was made that the tax survey would raise the revenue to 600 billion rupees in three years. Somebody obviously got his homework all wrong, at least by a couple of hundred billion rupees.

Another buoyant chapter entitled “Creating a Safe Society”, which zeroes in on law and order and judicial reforms, is yet another interesting example of bureaucratic gobbledygook. Colourful tables and charts are set out like gnomes on a seaside landlady’s front garden. There are copious notes on plans that have been made and steps that have been taken, the technology that has been tapped and the equipment that has been introduced. But the reader is none the wiser, because there isn’t a single comparative crime statistic, or even an oblique reference to the punishment to be meted out to people who carry out honour killing.

The chapter on rebuilding national confidence and morale, which centres on governance through consultation, and suggests that the Musharraf government was more democratic than elected governments, takes quite a bit of swallowing. As do the chapters on foreign policy and the supposed progression of the economy from stagnation to recovery.

One can almost picture the head of state in his combat fatigues, in front of the TV camera, telling the people with much pretentious rumbling of voice and wafting of gesture, they have never had it so good.

It is not quite clear for whom this epistle has been prepared. Experts who are cynical by nature, who know the economy is still mired in recession, will treat this presentation as sly confection. And the layman isn’t interested anyway, for even if he pointed out that there has been no progress in real terms, there is precious little that he can do anyway. Like most propaganda documents, this White Paper too will end up on the shelves, somewhere between ‘Don Quixote’ and Schopenhauer’s ‘Essays and Aphorisms’.

The second significant development was the formalization of certain constitutional amendments contained in the controversial Legal Framework Order, which include the powers of the president to dismiss the elected assemblies, appoint the services chiefs and the chairman, joint chiefs of staff committee, governors, the chairman of the federal public service commission and the chief election commissioner. By issuing an SRO, the cabinet division of the government has, in one fell swoop, handed over to the president the keys to the trapdoor through which Mr Jamali, his cabinet and government, can fall.

The prime minister has taken a totally unconstitutional decision, which demonstrates his complete disregard for the Constitution. The basic law is quite clear on this issue. To make an amendment, there has to be an endorsement by a two-thirds majority in both houses of parliament. Since elections to the Senate have not yet taken place, parliament is not yet complete. The Jamali government had therefore absolutely no locus standi to issue such an S.R.O.

The question that arises is, what on earth possessed Mr Jamali to do what he did? Was it some sort of insidious pressure from the president who appears to be obsessed with the task of carrying out his reforms? Was there some internal pressure from a few of his colleagues who might have received some sort of tacit assurance from the men in uniform that even if things do not work out in the end, they will still be looked after? Or was it just one of those bureaucratic gaffes which occur at regular intervals at the highest levels of government, where mandarins cherishing the Pakistani tradition of flippancy as a cover for professionalism, advise prime ministers suffering from delusions of adequacy? The first of the three possible explanations appears to be the most likely.

Ever since 9/11, when President Bush presented President Musharraf with a Hobson’s choice, and overnight Pakistan emerged as the United States’ staunchest ally, the latter has been trying every trick in the book to make the LFO stick. Ziaul Haq was faced with a similar predicament. But that wily dictator tried to do things the constitutional way. He took his package of reforms to the parliament and got away with it. However, the amendment empowering the president to dismiss a democratically elected assembly remained highly controversial. And it was not until Nawaz Sharif took up the issue and got parliament to repeal the amendment in 1997.

Of course, Mr Jamali’s move will be strongly opposed by the MMA, the PPP, the PML(N) and smaller groups. which are part of the national opposition. It will also be opposed by the various bar councils which have already passed resolutions against the extension of the retiring age of judges.

It will be opposed by columnists who write for liberal newspapers, sections of the intelligentsia and every thinking person in this country who nurtures the hope and belief that democracy, led by middle class intellectuals, and not feudal lords, with one day come to prevail Pakistan.

Perhaps it will also be opposed by Qazi Hussain Ahmed, chief of the Jamaat-i-Islami, and chief spokesman for the alliance of six religious parties, who has so far been in the forefront of opposing the unconstitutional role of the army in politics. Or, will it?

It was reported in a section of the vernacular press on January 20, that Qazi Hussain Ahmed, during a campaign for bye-elections, called upon the army to take over to ensure free and fair elections.

Was it a slip of the tongue, or has this highly intelligent cleric decided to throw in the towel ever since cracks have been reported in the MMA firmament? Time will tell.