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Posts from — April 2010

Call for giving Baltistan due share in GB jobs: the Dawn, Apr27

SKARDU, April 25: Lawyers have criticised the government for not giving Baltistan division due representation in judiciary and other departments of Gilgit-Baltistan. They sought share of Baltistan in judiciary and all departments according to its population.

Baltistan chief court bar association president Shaukat Ali advocate, in a statement here, said the people of Baltistan had been totally ignored in filling posts in the Supreme Appellate Court, Chief Court, special judges in banking, customs, anti-terrorism, anti-narcotics, excise and taxation courts; no single position had been allocated to Baltistan for the posts of advocate general, additional advocate general, deputy advocate general and assistant advocate general.

He said the people of Baltistan were being denied their due share in other departments like election commission, public service commission and services tribunal etc.

April 28, 2010   No Comments

Regional approach to water: edit in The Daily Times, Apr 27

One issue that stood out in Pakistan’s Foreign Secretary Salman Bashir’s address to the 37th session of the Standing Committee of the South Asian Association for Regional Cooperation (SAARC) in Bhutan was the need to adopt a regional approach towards tackling water issues. Environment and climate change will be the focus of the 16th SAARC Summit, which is going to adopt a declaration titled ‘Green and Happy South Asia’. Climate change worldwide and the malign effects of global warming will have a negative impact on our common heritage — the Himalayas — which are the reservoirs of our water in the form of glaciers. And that is how the subcontinent has, historically, remained one of the most fertile areas of the world. The water that flows down the mountains and is distributed through an extensive irrigation system is a source of livelihood and the very survival of millions comprising the agrarian communities of the region.

The issue of water distribution is the bone of contention between upper and lower riparian countries in the region. Voices of protest against India pilfering Pakistan’s share of water are growing louder. Besides Pakistan, India has had problems with Bangladesh on the waters of River Ganges that forms its delta in Bangladesh. These are issues dictated by nature, which is no respecter of political boundaries. Without a cross-border and region-wise cooperation, these issues cannot be settled to the satisfaction of all parties.

The same applies to all other issues, be it energy, food security, trade, people to people contacts, security, etc. The proximity and relative ease of transportation has the enormous potential to make trade among member countries a booming success, whose benefits will accrue at all levels of the regional economy. Unfortunately, this potential of cooperation among member states has not been tapped because of bilateral political problems, particularly between India and Pakistan. Since no bilateral issue can be discussed on the forum of SAARC, this hampers progress on key issues, affecting all other countries. This is not to say that progress has not been made since SAARC came into being, but the kind of cooperation necessary to make the dream of a prosperous and peaceful South Asia — originally envisaged in the body’s charter — a reality, is nowhere in the offing. http://www.dailytimes.com.pk/default.asp?page=2010\04\27\story_27-4-2010_pg3_1

April 28, 2010   No Comments

Water, War and Peace Sustained, open communication is essential: op-ed in The News, Apr 28

By Khalid Hussain

ISLAMABAD: The ongoing water contentions between India and Pakistan in the context of the Indus Waters Treaty 1960 (IWT) place before us four different yet inter-connected realities. One is the perception present in news coverage and analysis by the mass media in both the countries. The other exists between the two Indus Water Commissioners (IWCs) that jointly make up the Permanent Indus Commission (PIC) charged with implementing the IWT in letter and spirit. Third there are the ever-dominant bilateral security concerns that now stand compounded with ongoing international involvement in our regional geo-politics. And

finally, the environmental and ecological reality that we all live with across South Asia connects us to the rest of the world fighting climate change.

Let us address these perceptions one by one for a holistic perspective on water contentions between India and Pakistan. The media version is flawed because of a limited capacity to understand the complex hydrological regimes of the Indus Rivers System that both countries manage independently in their respective territories following the IWT. The almost secretive working of the IWCs in both countries further compounds the situation. The media in Pakistan, while projecting unfounded allegations of water theft and the ‘water war’ India is waging, tends to demonstrate a lack of understanding of the IWT – an instrument that has ensured water peace between the neighbours even during war times.

To these allegations, senior Pakistani statesman and a water expert in his own right, Dr Mubashir Hasan responds: “If India has stolen our water, then tell me how have they done it? Where have they taken it?”

“New Delhi has no ‘storage and diversion canals network’ to withhold Pakistan’s share of water,” explained India’s High Commissioner to Pakistan Sarat Sabharwal in his recent speech at the Karachi Council for Foreign Affairs.

Basically, there is a general tendency to oversimplify the IWT, especially in Pakistan. Most coverage simply goes with the notion that India has no rights over the Western Rivers (Chenab, Jhelum and the Indus). The reality is not that simple. Indian has water rights for domestic uses including drinking, washing, bathing and sanitation. The non-consumptive uses allowed to India cover uses including navigation, flood control and fishing.

India also has the right to draw water from the Western Rivers to irrigate a maximum permissible irrigated crop area of 1.34 million acres. It can also use water from these rivers for run-of-the river hydroelectric projects. Hydroelectric projects incorporated in storage works are also allowed albeit to the tune of only 3.6 million acre feet (MAF). Of this storage, 0.4 MAF is allowed on the Indus, 1.5 MAF on the Jhelum and 1.7 MAF on the Chenab.

This is in addition to the storage that existed on these rivers before the Treaty came into force. However, storage is strictly regulated for India, with a total of only 1.25 MAF allowed as general storage. The remaining quantity is split between 1.6 MAF for generating hydroelectricity and 0.75 MAF for flood control.

The media is key to ensure a fair coverage of the issues involved. The current water scarcity that is feeding emotions across the borders of the IWT is not permanent. It is making water ‘hot’ at the moment but as soon as supplies are replenished in the river system, the issue will move to the backburner as always.

This is why sustained open communication is so essential, as underscored at ‘Talking Peace’, the editors’ and anchors’ conference organised in Karachi recently by Aman ki Aasha, a joint initiative for peace by the Jang Group and Geo TV in Pakistan and the Times of India group in India. Editors agreed on the need for more cross-border information and on the need to focus on facts rather than emotions when writing about each other’s countries.

Concerted joint efforts are essential to cover the range of issues involved in an objective and fair manner on both sides. This is imperative to counter tensions between the two countries. This brings us to the latest unresolved contention between the two Indus Water Commissioners (IWCs) that jointly make up the Permanent Indus Commission (PIC) charged with implementing the IWT in letter and spirit.

As reported earlier (Part I of this series), Pakistan has already notified India of its intention to seek arbitration on the Kishanganga Hydroelectric project. The News has learnt that Pakistan will hire the services of its arbitrator in the Baglihar Dam case, Prof. James Crawford, Head of the Law, Cambridge University, once again. The News has learnt that a senior water expert from Pakistan paid a quiet visit to England in the last week of March this year to confirm his acceptance.(to be continued.) http://www.thenews.com.pk/top_story_detail.asp?Id=28538

April 28, 2010   1 Comment

Mumbai terrorist group threaten Indian ‘water jihad’: by Rob Crilly, in The Daily Telegraph

Lahore: Pakistan has repeatedly accused India of breaching the terms of a 1960 treaty governing the use of shared river systems, complaining that irrigation channels on its side of the border have emptied.

The issue has now been adopted by militants in Jamaat-ud-Dawah, widely regarded as a front for Lashkar-e-Taiba, a Jihadi group fighting Indian troops in Kashmir and responsible for the November 2008 wave of gun and bomb attacks that killed at least 170 people in Mumbai.

Hafiz Saeed, the founder of Lashka-e-Taibi and head of Jamaat-ud-Dawah, threatened a water war with India during a recent TV interview.

“Look at India’s attitude, especially after the 9/11 attacks. It has taken advantage of Pakistan’s weaknesses and made dams and stopped our water.

Pakistan, for its defence, will have to fight a war at all costs with India if it is not prepared for talks on Kashmir and water,” Saeed said in an interview with Frontline, a private TV channel.

His comments followed earlier statements claiming that control of water resources was being used as a weapon to weaken Pakistan.

“India is trying to hatch a deep conspiracy of making Pakistan’s agricultural lands barren and economically annihilating us,” said one.

India and Pakistan have fought three wars since partition in 1947 and remain deeply divided over the disputed territory of Kashmir.

Delhi broke off talks with Islamabad after the Mumbai attacks, which a senior Pakistan official later admitted had partly been planned in his country.

They resumed briefly in February but India insisted full negotiations would require Pakistan to prosecute those responsible for the Mumbai killings.

Manmohan Singh, of India, and Yousuf Raza Gilani, of Pakistan are expected to meet today on the sidelines of a summit of the South Asian Association for Regional Co-operation.

Officials said the question of water was likely to top the agenda.

The countries divvied up rivers originating in the Indian-controlled part of Kashmir, and flowing into Pakistan, according to the terms of the Indus Waters Treaty.

Pakistani campaigners believe the accord has broken down because India is taking too great a share to feed new hydropower plants and irrigate farmland.

Talks last month in Lahore failed to make progress with Indian officials arguing that better management would conserve Pakistan’s water supplies.

Farmers in Punjab province have staged angry demonstrations in recent weeks.

Hamid Malhi, coordinator of the Punjab Water Council, which represents farmers, said he believed the dispute could be resolved without conflict by amending the original treaty.

“What we fear is that if they fill all the dams and barrages they are constructing, they have the ability to squeeze us any time they like,” he said. http://www.telegraph.co.uk/news/worldnews/asia/india/7639449/Mumbai-terrorist-group-threaten-Indian-water-jihad.html

April 28, 2010   No Comments

‘Interim pact’ on Kashmir was for 15 years: Kasuri

By Babar Dogar in The News, Apr 28
LAHORE: Former foreign minister Khursheed Mehmood Kasuri has disclosed that the agreement on Kashmir, worked out through back-channel diplomacy, was an interim one, and was subject to review after 15 years.
Talking to The News here on Tuesday in the backdrop of ‘Aman Ki Asha’ – a joint venture of the Jang Group of Pakistan and The Times of India, Khursheed Kasuri claimed the Pakistani and Indian sides at that time had the realisation that in view of the history of Jammu and Kashmir dispute, no solution that they could think of would be an ideal one. He termed that agreement on Kashmir the best possible under the circumstances.

“We were aware of the fact that there would be an overwhelming support for this agreement; but we also realised that there would be criticism from some sections in Kashmir, Pakistan and India,” he said, adding that it was impossible to offer a solution which could be acceptable to everyone.

Kasuri said they decided that the arrangement they had arrived at would need a review after 15 years of its announcement. During this period, its implementation would be monitored by all parties concerned and, in the light of the experience, this arrangement could further be improved.

He said the water issue was not discussed as a crucial matter at that time; the agreement on Kashmir was being negotiated. However, the management of water was one of the issues included in the joint mechanism. He claimed that the joint mechanism was apart from the Indus Basin Treaty, which was the basis of water sharing arrangement between the two countries.

Responding to allegations from religio-political parties, which termed the proposed agreement an attempt to sell out Kashmir, Kasuri said the basis of the agreement was the assumption that Pakistan and India had tried everything in their power to enforce their version of a Kashmir settlement.

“They have fought five wars, including two minor ones in the Rann of Katch and Kargil. There have been various mobilisations of troops, including the largest one since First World War (Operation Parakram), in which one million soldiers remained eyeball-to-eyeball for almost a year,” Kasuri claimed. He said the nuclear parity had been established in South Asia after the nuclear tests India and Pakistan conducted, making war between the two countries nearly impossible.

Reacting to the criticism by Syed Ali Geelani of his statement on the reported Kashmir agreement, Kasuri claimed that he had great respect for Ali Geelani for his being a freedom fighter, but he disagreed with him that the solution that was envisaged for Kashmir would have led to further disturbances in the valley and that the people of the valley would never have acquiesced in a settlement that he described as one perpetuating the status quo. Giving reasons for his disagreement, he said the whole purpose of the disagreement was to improve the comfort level of the Kashmiris by the gradual demilitarisation. “The Kashmiri leaders, we met in India, Pakistan and overseas, attached highest importance to withdrawal of the Indian forces,” he claimed. Furthermore, he said the Kashmiris, due to the proposed agreement, would have become in-charge of their own destiny in a vast array of specified subjects in the economic, social and political spheres. He claimed that the very creation of a joint mechanism consisting of Kashmiri representatives from both sides as well as Indian and Pakistanis would have comprehensively negated the criticism that status quo had not been changed. He said the agreement arrived at once signed could not be unilaterally changed by either side. He believed that it would have given a lot of relief and hope to the Kashmiris.

He welcomed the statement of Prime Minister Yousuf Raza Gilani that efforts were being made through the back-channel diplomacy to resolve all outstanding issues with India. He said it was important that negotiations be resumed because Prime Minister Manmohan Singh’s government with which they negotiated the arrangement was still in power, and the BJP the other majority party had started the process during the tenure of former prime minister Vajpayee. He said he welcomed it despite being in the opposition because he believed that in matter of national interest one had to rise above the spirit of partisan.

He claimed that there was no need to reinvent the wheel and the recent comments from the Foreign Office of Pakistan suggested the same and were encouraging. He said painstaking and detailed work had already been done and the two governments should take off from where they had left.

Kasuri claimed that they conducted secret negotiations with all stakeholders because they wanted to avoid any spins or leaks, which could damage the level of trust between the parties. He said they could not have signed an agreement without authorisation from their respective cabinets and parliaments. He claimed that the whole idea was to produce a draft which the governments of Pakistan and India felt would be acceptable to the large majority of Kashmiris, Pakistanis and Indians, and the draft agreement would then have been submitted to the appropriate constitutional authorities in both the countries for their approval.

Kasuri believed that the present government also supported the agreement. He claimed that President Asif Ali Zardari, in his very first interview at the Aiwan-e-Sadr, said the nation would have good news about Kashmir very soon. He claimed that though this announcement was premature, yet it was clear that he could only make the statement because he was aware of the progress made on back-channel and supported it. He said the incumbent government appointed Tariq Aziz, their representative on back-channel, to continue his work after the present government took over. He further referred Foreign Minister Shah Mehmood Qureshi’s announcement during an interview with CNN that former foreign secretary Riaz Muhammad Khan, who was privy to all negotiations on the Kashmir agreement, was asked to start working on the back-channel.

Kasuri pointed out that those who criticised the secret nature of the back-channel needed to take note of the great secrecy with which the representatives of various political parties conducted their negotiations in parliament over the issue of the 18th Amendment, although this was purely an internal matter and not even marginally capable of exploitation by premature leaks or spins as against the protracted and difficult nature of negotiations between Pakistan and India given their troubled history on the dispute over Jammu and Kashmir.

Regarding taking all the stakeholders on board, he stated it was unthinkable that an issue of this nature could be negotiated without having all the stakeholders on board. He claimed that besides the Foreign Office and the Presidency, the Military was appropriately represented.

Kasuri claimed that the nature of Pakistan-India relations following the Mumbai attacks needed concerted efforts not just by the government but also by the civil society to bring the two countries to the dialogue process once again. He appreciated ‘Aman ki Asha’ by the Jang Group and The Times of India Group as an important contribution in helping to remove some of the trust deficit that existed between the two countries.http://www.thenews.com.pk/top_story_detail.asp?Id=28528

April 28, 2010   No Comments

A solution in Kashmir: edit in The News, Apr 25

Former foreign minister Khursheed Mehmood Kasuri’s startling disclosure that a solution to the Kashmir problem had been worked out under the Musharraf government and that all that was required was a signature on the relevant documents is rather unexpected and opens up all kinds of new possibilities. While there had been talks on the issue that contributes most to continued tensions between India and Pakistan, we had not known a solution was so tantalisingly close. The information offered up by Kasuri, at a seminar organised as part of the Jang Group-Times of India Aman ki Asha initiative is most encouraging. It suggests that in the first place it is possible for both countries to work towards a lasting solution. The entrenched positions taken in the past have left doubts open on this score. It is also significant that in both capitals there is awareness of the need to settle the matter as one that holds the key to easing the relationship between the two nations. The formula for peace that Kasuri outlined, involving autonomy that stopped short of complete independence and a demilitarisation of the Kashmir territory, also appears – on paper at least – to be feasible. While almost all Pakistanis would favour the accession of Kashmir to their country, 63 years after Partition, this dream has remained elusive. It is said the terms worked out had been opposed only by a single, hard-line leader in Kashmir, while the ex-foreign minister stated the solution worked out had deliberately not been publicised to avoid an outcry in either country. In fact, Kasuri’s revelations show how both sides had reached a level of understanding where they were mindful of public reaction in both countries and were willing to show flexibility in order to ‘sell’ the deal to their respective people. As we all know, hawks dominate the debate in many ways both in India and Pakistan and have in the past campaigned ferociously against efforts aimed at peace. Their influence within the structure of the establishment in both countries makes them especially powerful. It is also a fact that much of the justification for maintaining immense armies would evaporate if a solution was indeed worked out in Kashmir.

As far as people go, one must, however, hope the papers Kasuri spoke of are indeed signed in the not-too-distant future. This act could change the fate of the subcontinent and go a long way towards creating security and an escape from abject poverty for a sea of people. While there has been a longstanding debate on whether Kashmir should be tackled first or Confidence-Building Measures put in place to create the right environment for the issue to be taken up, the revelations made by the former minister indicate that a great deal of ground had already been covered. This should motivate the leaders in both Islamabad and New Delhi to move more rapidly towards sealing the deal. It would also encourage those championing people-to-people initiatives on both sides of the border to exert pressure on their governments in order to create a more conducive atmosphere. It is clear that many of the major players in both India and Pakistan are mentally prepared to resolve this long-festering problem. What they require is the backing of public opinion and moral courage and statesmanship. The stakes are extremely high. By moving towards peace they would play a part in the making of history and the settlement of a dispute that has through the decades since 1948 taken a huge toll on both countries, eating into resources, claiming hundreds of lives and keeping the people of Kashmir apart from each other while it is unity they yearn for. http://www.thenews.com.pk/daily_detail.asp?id=235924

April 25, 2010   No Comments

SJC recommendations binding on Gilani: AJK premier

By Tariq Naqash  in The Dawn, Apr 25
MUZAFFARABAD, April 24: Azad Jammu and Kashmir Prime Minister Raja Farooq Haider said on Saturday that recommendations of the Supreme Judicial Council calling for removal of non-functional chief justice Reaz Akhtar Chaudhry were binding on the AJK Council chairman — the prime minister of Pakistan.

“Some elements are conspiring to get the SJC recommendations held in abeyance to create unrest in AJK, but I hope that Prime Minister Yousuf Raza Gilani will not let their nefarious designs succeed,” he said while talking to delegations of lawyers from Hattian Bala and Neelum valley. “Even if the SJC report is held in abeyance for one year, ultimately the decision will have to be made on the basis of its recommendations,” Mr Haider said and warned that any unconstitutional action could trigger strong reaction in AJK.

Raja Farooq said he had made it clear to all concerned that constitutional issues could not be settled through jirgas, but only through the process laid down in the Constitution.

“Any jirga could have been held prior to the filing of reference to the SJC, but once the recommendations have been submitted to the AJK Council chairman he is left with no option but to implement the same,” he added.

The AJK premier reiterated that the reference was purely a constitutional matter and the points therein involved subversion and transgression of constitution by justice Reaz.

Referring to the contention of President Raja Zulqarnain Khan that his office was ‘misused’, he pointed out that the AJK constitution provided same powers to the acting president. “AJK has a parliamentary form of government where the president is bound to act upon the advice of the prime minister.”

About media reports that the deposed CJ had filed recommendations against Justice Manzoor Hussain Gilani and Justice Ghulam Mustafa Mughal to the AJK Council chairman, Raja Farooq said it carried no legal sanctity.

“There cannot be a parallel SJC. Courts cannot be established in residences or in markets. There is only one Supreme Court headed by Justice Gilani (acting CJ), one high court headed by Justice Mughal and one SJC,” he said.

The AJK premier welcomed the 18th Amendment and expressed the hope that much-needed amendments to the AJK interim constitution would also be effected at the earliest. http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/national/sjc-recommendations-binding-on-gilani-ajk-premier-540

April 25, 2010   No Comments

The recurring nightmare: op-ed by Ardeshir Cowasjee in the Dawn, Apr 25

THE irrepressible, inimitable, 90-plus, Khushwant Singh, who has few peers in the subcontinental journalist community, is much taken with young Fatima Bhutto — mind you, he always has had and is renowned for his roving eye. He also has much to say about Fatima’s book Songs of Blood and Sword which he has reviewed twice.

Firstly, in the Hindustan Times on April 17 and then in the April 20 issue of Outlook, the latter under the somewhat gory title of ‘The burnt inside of Pakistan’s house of Atreus’. The House of Atreus is famed for the curse put upon it for murder, betrayal and sheer horror, one of the most enduring of Greek legends.

Atreus of Argos was the father of Agamemnon and Menelaus who respectively married Clytaemnestra and Helen of Troy, and heaven knows there is abundant tragedy and gore in their stories. But the most repellent part of it all concerns the quarrel between Atreus and his brother Thyestes over the affair the latter had with Atreus’s wife which resulted in his banishment from Argos.

Thyestes wished for reconciliation and after some time was allowed to return. Atreus prepared a huge banquet in celebration at which he served up to Thyestes the cooked flesh of his two slaughtered sons. The unknowing father ate and was then informed by his brother of what he had just done — the origin of the term ‘Thyestian Banquet’. Thyestes, horror-stricken, put a curse upon the family of Atreus and fled. The curse, as legend records, worked to perfection.

According to Khushwant the story of the House of Bhutto, written by Fatima in “impeccably beautiful prose would have been a joy to read if it had not been a gruesome tale of intrigue, treachery, treason, violence and cold-blooded murder. It is one long nightmare ….”. Strong stuff, and with justification as we who have followed the Bhutto saga down the years well know, and the betrayal continues with the man we now have in the presidential palace in Islamabad, accompanied by his resident soothsayer.

Fatima is “beautiful, highly gifted and gutsy”. When she called on Khushwant, after launching her book in Delhi earlier this month, he wrote “I could not take my eyes off her. I kept gazing at the pinhead of a diamond sparkling on the left side of her nose and her long jet-black curly hair falling on her shoulders. I hope I see her at least once more before my time is up.”

He is not so enamoured with other member of the family and has harsh words for Zulfikar for “indirectly helping East Pakistan become an independent Bangladesh” because he found it unacceptable that if unity was maintained the East Pakistanis would far outnumber the western lot. So much for democracy! Khushwant also slams him for pandering to the archaic laws of the clergy merely to hang on to power.

He is scathing of Bhutto’s betrayal of Manzur Qadir, Ayub Khan’s foreign minister. As a fellow cabinet minister, Bhutto denounced Qadir as being a free-thinker and not a good Muslim. He was consequently dropped from the cabinet and ultimately Zulfikar moved into his slot. Khushwant also touches upon the J.A. Rahim incident, and his beating up by PPP goons merely because Rahim left a dinner after waiting for two hours for Bhutto to turn up.

As for Zulfikar’s son-in-law, he shares Fatima’s “low opinion” of him, refers to his indulgence in shady deals and terms him “uncouth and foul-mouthed”. He blames Benazir for doing little in her two terms to improve the lot of the common people. His closing lines in the Hindustan Times: “Incidentally, I also added a new word to my vocabulary which fits both Pakistan and India. It is ‘saprophytic’, which means feeding on decaying organic matter. Both nations rely on all that is rotten in their past.”

The book was also reviewed in London’s Sunday Times on April 4, by Max Hastings, who likens it to a Jacobean drama rather than a Greek tragedy, cataloguing the list of hanging, poisoning, terrorism, murder and assassination — “hate and blood” he terms it.

The content to him is “emotional, partial, naïve and wholly unreliable about who really did what to whom. But it possesses readability from those with a taste for family horror stories”. He is totally unsympathetic to all the characters, and spells out his factual reasons citing acts of omission and commission perpetrated by Fatima’s grandfather, her father, her uncle and her aunt, all of whom in ways most discernible were flawed characters.

Hastings is unforgiving to Fatima for her “blind rejection of any pretension to insight or judgment”. This may be unkind, for it would take an extraordinarily strong character to be objective about a hanged grandfather, a murdered father and uncle, and an assassinated aunt. She must be given leeway for having had a childhood and youth so tainted by tragedy and violence as to make the admittance of hard historical fact difficult indeed.

As admits Hastings, the “book’s virtues derive from the author’s passion and some vivid pen portraits”. Hastings’s own vivid pen portrait of Asif Zardari, Benazir’s husband, is that he is “considered by some to be the most notoriously corrupt figure in the subcontinent” and that he “climbed over her corpse to become Pakistan’s president….”

As strong a stuff as that of Khushwant! And his ending must make us all, including those who sit atop us, pause and think: “But she conveys a terrifying sense of the ungovernability of Pakistan and its 180m people, exposed to the competing violence of rulers and rebels. Another army coup must be due some day soon.” http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/columnists/ardeshir-cowasjee-the-recurring-nightmare-540

April 25, 2010   No Comments

Unlike Pakistan’s, Courts in US, India, Germany and Hungary overrule parliaments

By Sabir Shah in The News, Apr 25

LAHORE: As the 18th Amendment has apparently pitched the Pakistani parliament against judiciary, besides having divided the lawyers’ fraternity on the issue of separation of powers among the three branches of the government, a study of the American Judicial Review system shows that since the last 207 years, the US Supreme Court continues to constitutionally determine the validity and application of the laws passed by its country’s legislators.

According to Article III (Section 2) of the 1787 US Constitution, the Supreme Court enjoys both original and appellate jurisdiction on any law framed by the legislators sitting in the Congress and Senate.

While the judicial power of the US apex court extends to all cases, it even has the authority to decide how the Congress may actually mean or want the application of law otherwise made by it.

A history of Judicial Review in the US reveals that between 1803 and 1804, the Supreme Court had established its supremacy over both Executive and Legislative branches of the government by striking down their orders.

While the first US Supreme Court decision to declare an act of Congress unconstitutional came in the oft-quoted Marbury versus Madison case of 1803 during the reign of President Thomas Jefferson, the Court’s first decision to declare an Executive Branch action as unconstitutional was announced in the Flying Fish case of 1804.

In the Marbury versus Madison case, Chief Justice John Marshall struck down the unconstitutional acts of the US legislators, hence setting up a precedent that the arbiters had distinct judicial review powers to determine which laws the Congress actually intended to apply to any given case.

Meanwhile, the Flying Fish Case had involved an order issued by President John Adams in 1799 during America’s war with France, whereby the Navy was authorized to seize ships bound for French ports.

After a Navy Captain in December 1799 seized a Danish vessel called “Flying Fish,” pursuant to Adams’s order, the owners of the ship sued the captain for trespass in US Maritime court.

On appeal, Chief Justice Marshall rejected the captain’s argument that he could not be sued because he was just following presidential orders. The Court noted that commanders “act at their own peril” when they obey invalid orders, ruling that the US President’s order was outside his powers.

Within a couple of years, John Marshall again infuriated Jefferson by exonerating former Vice President Aaron Burr in a treason case framed against him at the behest of the Jefferson regime.

After passing these orders in quick succession, Chief Justice Marshall thus had to encounter an extremely harsh criticism from President Jefferson and the incumbent Congress legislators, compelling the most respected top judge in history to observe,” If Congress were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. Hence, the judges would declare it void. To what quarter will you look for protection from an infringement on the Constitution?”

The US Supreme Court then never looked back after issuing these two afore-mentioned historic verdicts.

For example, in the Sheldon versus Sill Case (1850) surfacing during President Andrew Jackson’s era, Chief Justice Roger Taney had taken the Congress head-on by holding that the legislators could not limit the subjects the Supreme Court may hear.

In the 20th Century, the US Supreme Court even dared the strongest regimes of Presidents Franklin Roosevelt, Eisenhower, Harry Truman, Richard Nixon, Bill Clinton and George Bush Junior.

After the US, the country where Judicial Review powers are most extensively exercised is India.

The Indian Constitution seeks to ensure the independence of judges in various ways. Supreme Court Judges are generally appointed by a Collegium of sitting arbiters on the basis of seniority and not on political preferences.

The Supreme Court has special advisory jurisdiction in matters which may specifically be referred to it by the President of India under Article 143 of the Constitution.

The Indian Constitution vests in judiciary, the power to adjudicate upon the validity of all the laws. If the laws made by parliament violate any provision of the constitution, the court has power to declare such a law invalid or ultra vires of the Constitution.

The Indian Supreme Court judgment in the Kesavananda Bharati case of 1973 established the “Doctrine of Basic Structure.” According to this verdict, the Indian Constitution has certain basic features which hold a transcendental position and which cannot be altered either by the parliament or Supreme Court.

The judgment stated that although these amendments were constitutional, the court still reserved for itself the discretion to reject any changes made by the Parliament, through which the Constitution’s basic structure was altered.

Despite the fact that the Indian Supreme Court enjoys original, appellate and advisory jurisdiction, questions have been raised since 1951 about the scope of the constitutional amending process contained in Article 368 of the Indian Constitution.

After the courts had overturned state laws redistributing land from landlords on the grounds that the laws violated the land owners’ fundamental Rights, the Parliament passed the first Amendment in 1951, fourth in 1955 and 17th amendment in 1964 to protect its authority to implement land redistribution.

The Supreme Court countered these amendments in 1967 in the Golaknath versus State of Punjab case when it ruled that the Parliament did not have the power to abrogate fundamental rights, including the provisions on private property.

To counteract against the Golaknath case decision, former Premier Indira Gandhi then made a series of attempts through various constitutional amendments to establish Supremacy of Parliament over judiciary.

The Indian Supreme Court again declared that the Parliament could not use its amending powers to damage, emasculate, destroy, abrogate or alter the ‘basic structure’ of the Constitution.

This decision is not just a landmark in the evolution of constitutional law, but proved a turning point in constitutional history.

In 1970, the Indian Supreme Court invalidated the government-sponsored Bank Nationalization Bill that had been passed by parliament, besides rejecting the presidential order of September 1970 which abolished the titles, privileges and privy purses of the former rulers of India’s old princely states.

In reaction to Supreme Court decisions, the Parliament empowered itself to amend any provision of the constitution, including the Fundamental Rights.

In Indira Gandhi versus Raj Narayan case of 1975, the Supreme Court applied the theory of basic structure and observed that the amending power of the parliament only destroyed the ‘basic feature’ of the constitution.

But despite being bogged down during the Indian Emergency period of 1975-77, in which Indira Gandhi had even tried to dishearten the highest judiciary by appointing a junior judge as the chief justice superseding senior judges like Justice Khanna, the Apex Indian Court did not cease to exercise its power of Judicial Review.

For example, in the Minerva Mills case of 1980, the Indian Supreme Court again struck down an amendment on the ground that destroyed the basic structure of the Constitution.

In Sawhney versus Union of India case, popularly known as the Mandal Commission case, the Supreme Court ruled that the parliament had amended the constitution beyond his scope.

In its 2007 judgment in the Coelho versus Tamil Nadu case, the Indian Supreme Court reaffirmed the basic structure doctrine by ruling that a constitutional amendment entailing the violation of any fundamental rights can be struck down depending upon its impact and consequences.

The judgment clearly imposed further limitations on the constituent power of parliament with respect to the principles underlying certain fundamental rights.

In Germany, the Federal Constitutional Court is empowered with reviewing acts of the Federal Republic Congress (the Bundestag) for their constitutionality. The Federal Constitutional Court of Germany can even review and reject constitutional amendments on the grounds that they are contradictory to the rest of the Federal Republic Constitution. This even goes beyond the powers of the US Supreme Court and the Indian Supreme Court.

In Hungary, where the Supreme Court Chief justice is elected by qualified two-third majority of the parliament, there is no government oversight and arbiters elected for eight years have complete authority to nullify laws without any objection from the Legislative or Executive branches. http://www.thenews.com.pk/top_story_detail.asp?Id=28484

April 25, 2010   No Comments

BB’s murder: the pyre must burn: op-ed in The Nation, Apr 25

By Samson Simon Sharaf

The writer is a retired officer of Pakistan Army and a political economist.

The assassin displayed remarkable cool. At least once, he chose to delay his fire and then moved in very close to an advantageous position with the bomber following him. The man who grappled and brought him down deserves a citation.
Benazir Bhutto, the Daughter of the East is dead, buried and treacherously abandoned by her party leadership. Some prime witnesses including the assassin himself, the suicide bomber, Khalid Shanshah, Baitullah Mehsud and God knows who else are silenced forever.
Someone needs to explain why that hyperactive Benazir, the Princess of the day, infused with vigour like an elixir had to die. The Bhutto legacy will endure treacherous times. Quoting Hussain Pawar, The pyre will burn.
At a time when the country is struggling to fight its civil war in the backdrop of a sinking economy and growing parochialism, the Bhutto Legacy provides the cohesion needed to offset threats. It is the duty of every Pakistani to keep this pyre burning till such time the planners of Benazir’s murder are identified and punished.
In the same stride, the nation must also know who murdered national leaders like Quaid-i-Azam Muhammad Ali Jinnah and his sister, Liaquat Ali, Bhutto, Ziaul Haq and Murtaza Bhutto.
Much before the UN investigation, every Pakistani was convinced that all investigations into the tragedy are deliberately misleading. Scotland Yard appears as much an accomplice in the cover-up as the Handle Theory. It appears that even the most incriminating video released by Channel Four through CNN and a Pakistan television network was deliberately blurred and edited to create confusion. This fact alone warrants expanding the ambit of inquiry to handlers outside Pakistan.
There is no doubt that Benazir was abandoned and left vulnerable by the state security apparatus and by her very own stalwarts.
Her chief of security merits inquest solely on the basis of his changing statements in the hours following her murder. As it turns out, he and Babar Awan were the ‘get away men’ who fled the scene in Benazir’s reserve vehicle. The most loyal Khalid Shahanshah who had probably lost that element during his visits abroad was the first to jump into Benazir’s vehicle and also to jump out and bolt to Zardari house, only to be gunned down in Karachi.
After Benazir’s rally security was stand-down. There were no senior police officers befitting the presence of a two-time prime minister and VVIP. The much touted Elite Force instructed to make a box bolted well before the murder. Stays behind parties were either blocking the turning to the left or mere spectators; some at their own peril rubbing shoulders with the suicide bomber and the shooter. There was no chivalry in their death.
The news broadcast by channels within the first two hours of the incident need to be replayed. There were eyewitness accounts by doctors of RGH that Benazir had received one to two fatal gunshot injuries. Suddenly everything changed and the doctors were made helpless by police and district administration. Even Sherry Rehman sings no more.
Cell phone communication through towers close to RGH will also reveal conversations of doctors and paramedics eagerly disclosing to friends and families the extent and type of Benazir’s injuries. By morning everyone including cell phones was quite and shift doctors quarantined. http://www.nation.com.pk/pakistan-news-newspaper-daily-english-online/Opinions/Columns/25-Apr-2010/BBs-murder-the-pyre-must-burn

April 25, 2010   No Comments