Issue 48 Vol II, September 30, 2007

F O C  U S

Shocking Abuse of Judicial Power
Gobind Thukral

“IN February 2006, 26 Supreme Court judges faced a backlog of more than 30,000 pending cases; over three million cases were pending in the high courts - 350 years of work for the country’s 670 judges at the current rate of resolution”. Transparency international.

The Indian republic of circa 2007 is marked by increasing threats to freedom of thought and expression and shocking abuse of powers by all its institutions.  Parliament’s functioning is thwarted not only by when MPs are caught on camera accepting bribes in defence  deals or asking questions to take money, but rowdy behaviour of its members. Same is true about our assemblies. Executive is long known for its insensitivity towards the public and its myriad problems. It has become the epitome of corruption and inefficiency. Judiciary the last resort for those who can afford to knock its doors for justice at times abuses its powers and is becoming corrupt and even lazy in the dispensation of justice. Media, the fourth estate is now more for profiteering and monopoly control over information and opinions. It employs every gimmick to increase circulation in order to sell readers to advertisers and make money.

It sounds cynical.   But how could one see these institutions which at times perform well and add enormously to the public welfare, going sick. Look at the two controversies that have emerged only this month. It involves disparate people, issues and agencies but have a common link; denial of fundamental freedoms.

The Delhi High Court’s action in holding the editor, the publisher, the resident editor, and a cartoonist of Mid Day (published from Delhi) guilty of contempt of court for making allegations of gross judicial misconduct against the former Chief Justice of India Y.K. Sabharwal and sentencing them to four months’ imprisonment  raises  troubling questions. The court did not admit truth as a plea against contempt ad defined in the latest amended Indian Contempt Act. It clearly is an instance of inappropriate use of the contempt power to bar an attempt to raise the issue of judicial misconduct. It clearly underlines the danger to freedom of expression. Does our judiciary’s want to use its untrammelled contempt power to stop newspapers from exposing the misconduct of the judges at any level?  Does it not strengthen the impression that the judiciary as an institution has much to hide? This in turn undermines its credibility in the eyes of the public. Some years back a well known judge of the Supreme Court justice Krishna Iyer observed that contempt cases are   “Vague and wandering jurisdiction with uncertain frontiers”.  Apart from the built-in unfairness in a judge acting in his own cause, serving as prosecutor, judge, jury, and hangman, a great deal of uncertainty marks the offence of “scandalising the court.”

Two years ago, the Center of Media Studies conducted survey which found that 77 per cent Indian perceived judiciary to be conduct. Our judges know that several factors include corruption, paucity of judges, procedure wrangling and poor infra structure are causing inordinate delays. Only this week, the Supreme Court decided case pending since 1947 from Kerala about some land dispute.   There are 40,243 cases pending in the highest court. 20 million cases are filed each year and only 19 million decided, leaving a huge backlog. According one estimate Rs 2500 crore is the amount that is paid as bribe to lawyers, court officials and to judges every year. Yet the courts would routinely punish journalists and writers of eminence like Arundhati Roy for raising serious issues. The Delhi High Court has taken no action against the lawyers and judges who had investigated the case of corruption against justice Sabharwal and levelled these allegations through press conferences and articles. Now several newspapers have written hard hitting editorials on the issue.

In case of justice Sabharwal, there is no mechanism available to   get the charges investigated.  The absence of an effective and credible institutional mechanism to probe allegations of misconduct against judges of the high courts and the Supreme Court lends credence to the charge that our judges believe in cloistered virtue. This is clearly unhealthy for any democracy. Any criticism of the judiciary customarily invites the wrath of judiciary that refuses to submit itself to any inquiry except by them. Other countries have institutional mechanisms like complaint officers.

Leading lawyers and the Campaign for Judicial Accountability and Judicial Reforms have been making two broad allegations against Mr. Sabharwal. One is that his orders on sealing irregular commercial premises in residential areas of Delhi were ultimately to the benefit of two business associates of his sons who were engaged in developing commercial complexes and malls.  Because of the sealing drive, property values and rents went up in those areas. His sons benefited from this. The allegation looks wild at its face. The second charge is more serious. It is that even as he heard the case relating to the tapes said to contain recorded conversations of the Samajwadi Party General Secretary Amar Singh and passed an interim order staying their broadcast, the Uttar Pradesh government allotted his sons plots of land in Noida at rates that were a fraction of the market prices. Mr. Sabharwal found that silence was no longer an option, refuted these charges point by point in a newspaper article.

Take the case of a former RAW [India’s external secret agency] Officer V.K. Singh, a major general from the Indian army who exposed through a book the inefficiency and corruption in this premier intelligence agency. The result: a CBI raid on him for violating the Official Secrets Act. Interestingly three months after the book was published, the cabinet ordered the CBI, it handmaiden to probe. The CBI has raided the publisher too. This 84 year old archaic British law is being kept alive to frighten anyone who dares to reveal the truth. Anyone, journalists  and writers , whether former bureaucrats  are anyone else  can be  hauled up for possessing a piece of paper on which the Babu has written ‘secret’ or ‘top secret’ and you are in  jails for months and years. It is a convenient tool to shut up anyone who threatens to spill the beans?

Dissent and debate are the foundation of any democratic society, particularly a multi-cultural, multi-religious and pluralistic like ours. Whether it is a work of art or a film, out comes the government, the judiciary or those loony fringe to impose their will on the masses. Remember in Punjab head of the Takht Damdama Sahib Balwant Singh Nandgarh declared that any one bringing the head of the chief dera Saccha Sauda would be weighed in gold and following this former BJP MP Ram Vilas Vedanti has offered gold for the head of Tamil Nadu Chief Minister Karunanidhi for his remarks on lord Rama. What has happened to the liberalism and the spirit of accommodation? The Indian state and people are surely not so frail that they cannot withstand constructive criticism or the questioning of beliefs.

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Assessing Pakistani Democracy
Ishtiaq Ahmed

THESE are very exciting times for Pakistan. Despite my long absences, I can well imagine what must be going on in our major cities, especially in the  bar-rooms and the tea and coffee shops where the ‘politics-walas’ congregate; one buzzword will surely be heard all over: democracy.

This is a good sign because if in the last 60 years we have not been able to appreciate democracy, there is no reason we will not be able to do so now or in the next 60. The life of nations is a long one, provided they take good care of themselves.

The first and foremost principle of modern democracy is one-person-one-vote. Pakistan fulfils that criterion admirably, although when it comes to putting value on the evidence of men and women in a court of law, we have a strange system that declares the evidence given by a woman half in value to that of a man.

But then we are not a democracy of the ordinary type but an Islamic democracy, which allows one-person-one-vote, but not a female witness being considered as reliable a witness as a male. From what I know, the arithmetic is that one man and two women fulfill the required minimum of two witnesses!

The second principle of democracy is open and free elections by secret ballot. We have been less keen on this kernel value of democracy. Our erstwhile legislators were elected in 1946 when Pakistan did not even exist. Thereafter, they were not sure if they would be elected to parliament and so they kept postponing elections.

However, when we did hold fair elections, we were not willing to honour the connected third principle of democracy. It is that the party, which wins a majority, has the right to form the government. In 1954, the so-called Jugtu Front, comprising disgruntled East Pakistani politicians, swept the provincial elections but were not allowed to last long in government.

In December 1970, we had the only true, nationwide free election. The results showed a clear majority for the essentially East Pakistan-based Awami League. The Awami League won 161 seats out of 162 for East Pakistan in a National Assembly constituted by a total of 300 seats. It was denied the right to form the government by the West Pakistani power elite.

It provoked a popular uprising that resulted in a bloody civil war, which in turn provided Mrs Indira Gandhi an opportunity to order her military to intervene and help the Mukti Bahini rebels to come to power in what became Bangladesh. Pakistan was fractured into two.

When the mercurial Zulfikar Ali Bhutto became Prime Minister of Pakistan, he carried out some progressive reforms on behalf of workers and peasants, but then made a mockery of the fourth principle of democracy: that parliamentary majority should not be distorted to become the tyranny of the majority. He used his parliamentary majority to have the Ahmadiyya community declared non-Muslims in 1974. Such an agenda belonged automatically to extremist forces and not to one claiming to be a social-democrat, but Bhutto wanted to wrestle the initiative out of the hands of the former.

The outcome was just the opposite. The ulema were greatly emboldened to advance their own agenda by the oligarchy of senior civil servants and military officers. Both considered Bhutto’s Islamic socialism as an anathema. The Nizam-e-Mustafa movement they launched was hell-bent on getting him out of power and they succeeded in that.

Those forces brought General Ziaul Haq into power and Bhutto was hanged by a split Supreme Court verdict. The long years of the Zia dictatorship greatly undermined democracy and democratic values, although even he could not prevent some restoration of the democratic process.

Prime Minister Junejo was expected to play the role of a rubber stamp but he proved to be a man of substance and began to assert an independent rule-oriented line in his conduct of office. That resulted in his dismissal in 1988. General Zia perished in a plane crash soon afterwards.

New, elected governments again came into power. Both Benazir Bhutto and Mian Nawaz Sharif became prime ministers twice, but were dismissed by the oligarchy each time on charges of corruption. Benazir Bhutto and Nawaz Sharif were ever so willing to conspire against each other during that period, which made the oligarchy despise them even more strongly.

While in office, Ms Bhutto sent General Faratullah Babar to the Talibans to assure them of Pakistanis support. Nawaz Sharif tried another route to stardom. He introduced the 15th amendment, which if it had been passed by parliament would have made the dogmatic Shariat the supreme law of the land. This not even Zia had tried.

Both are now in exile, but not because they stood up as representatives of the people and champions of democracy against the oligarchy, but because despite their best efforts to appease the oligarchy they failed. They now live in exile and are outbidding each other as thoroughbred democrats.

There is no doubt that as long as the oligarchy enjoys an overwhelmingly dominant position, democracy in the sense of a government based on the will of the people, can never be established in Pakistan. It is, however, equally true that as long as the politicians do not distinguish between the interests of the nation and their own personal interests to remain in power, they will be easily expendable by the oligarchy.

I have a strong feeling that the oligarchy will be forced to review its own interests sooner or later. In particular, the military will have to do some soul searching. There is a widespread feeling in Pakistan that what was once one of the best fighting forces in Asia has become a closed club of some generals who exploit their power and positions to amass great personal wealth and immunities.

Democracy in the 21st century must mean a form of government that upholds the rule of law, strict adherence to parliamentary procedure, and respect for human rights of all and sundry without any exception. We need to generate discussion on this theme. If I were to say what the best legacy of General Pervez Musharraf is, it is undoubtedly the freedom of expression. I hope it survives when he leaves, now or later.

[The author is a visiting senior research fellow at the Institute of South Asian Studies (ISAS), National University of Singapore. isasia@nus.edu.sg Courtesy The News International Pakistan.]

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Pakistan on the Precipice
Ek Dhaka aur do to see Musharraf out

Finally, much to the chagrin of the opposition parties, the Supreme Court of Pakistan has declared that Gen. Pervez Musharraf could wear his uniform and contest for presidency. Side by side the court asserted and got the barricades lifted from Islamabad and over 200 opposition leaders out of jail.

The message which the six out of nine judges of the highest court delivered to the politicians was that they have been colluding with and pandering before the general and had amended the constitution to push through such travesty of approving the military rule, permitting the general holding the two offices and contest from the out going parliament and state assemblies. Now they wish to be bailed out by the court. How can that happen, even though at least three of the nine judges decided that he could not hold dual office? Can the opposition show unanimity and resign as one block from the national assembly and the state legislatures and make it impossible for the general to get elected. The fractured politics would not permit it.

Yet a raucous agitation has been launched and there is a violent confrontation on the cards. It would have the support of a large section of the people as Musharraf has lost any relevance if he had any for Pakistan. It is time for him to go and he knows this that is why he has been seeking political settlements with Benazir Bhutto and others. He has already placed trusted generals in place and if he sheds his uniform after his reelection on October six, there should be no problem working with the new prime minister. His choice is a beleaguered Benazir. He has seen Nawaz Sharif out to Saudi Arabia and has been making big efforts to see that rest of the opposition remains divided and there are in mass resignations from the national assembly and state assemblies.

In New York on September 29, The US Assistant Secretary of State for South and Central Asia, Richard Boucher, made it clear that it supports a civilian government “as would be in a better position to fight terrorism because all segments of society wanted to combat that scourge. A lot of people in Pakistan think it’s time for a transition and think it’s time to put the whole sort of basis of Pakistani society and politics on a more solid footing, a footing of modernisation, a footing of democracy, a footing of moderation.

And that’s something we’re trying to help with, not just in terms of encouraging the political process to go forward smoothly, our only hope is that the process of transition to democratic civilian government proceeds smoothly and successfully. US also looked forward to free and fair elections in Pakistan”.

Why this change of heart as America has been doggedly supporting and sustaining a dictator so far.  Does it mean it wants the parties to help Musharraf become a civilian president with Benazir as prime minister?

Musharraf, however, is unlikely to go on his own. He shall go the way all dictators go.  But the bigger dilemma for the people of Pakistan is the military that is well entrenched in political and economic activity. It has allowed no real economic reforms including land reforms to see the country fast from feudalism to industrial stage and democracy.

This decision of the Supreme Court which legally suits Musharraf does not resolve the crisis to which Pakistan has been pushed in. Pakistan has been moving for the past several years from one chaos to another chaos. The country’s politics has been in disarray. It might be further propelled down the road of self-destruction.  The president would be reelected as it looked likely with Benazir Bhutto and the PML Q supporting, Pakistan may still remain in an unstable state. Even if Benazir who is returning to Pakistan under an American brokered agreement with the military to be the next prime minister, chances of success are minimal. Here are too many “ungoverned spaces” where the writ of the state doesn’t run. It is not that Pakistan’s polity is fractured; its basic premise of an Islamic state is under threat and from the jihadis who swear by religion.

The Supreme Court which was asked to deliver what does not lie within its domain is nevertheless fast losing its prestige in the eyes of the legal profession and there is a daily barrage of professional and non-professional criticism of the judges. And the opposition parties have taken to the streets to keep the anti-government pots boiling. Lawyers, students and the general public could join in. But can they pull the country of out of the quagmire.

Nawaz Sharif and Benazir Bhutto are being hailed as returning heroes, the gallant saviours of democracy, and Asif Zardari is referred by some as the Pakistani Nelson Mandela! Surely there is no end to the tamasha to which Benazir is bound to lend her manufactured pretentious role.  Even Nawaz Sharif may be allowed through a court ruling to come and join the jamboree.

Finally, the forces of chaos will catch up with the state to make it look like a failed state. The most crucial factor, in case President Musharraf is “re-sworn” without his uniform, will be again the army. The government will face a growing environment of mayhem and transgression. Economic disparities and religious divisions are stark realties.  The army would be called to move against a mix of terrorists and political elements grown excessively unruly and vandalistic. Not having made much headway against the terrorists in the past, what if the army is inclined to re-examine its options and seek total political power? Has American the big supporter of the present regime of this frontline state to fight terrorism calculated all this?

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Myanmar: Bullets for Pro Democracy Monks

TRUE to its colours, the cruel military junta has once again resorted to firing, arrests and torture to crush the pro democracy movement in Myanmar. Over a dozen people have been killed and hundreds of peaceful Buddhist monks hauled up from monasteries and towns and tortured. It has pushed troops and imposed curfew to crush a totally peaceful movement. Launched by thousands of Buddhist monks as a peaceful struggle, the movement has nearly complete support of the people. Thanks to the new information technology, it came alive with pictures and video films to the entire world in no time. This must be upsetting the ruthless military rulers. Now the junta has cut communication links with outside world.

The first sign of the protests currently underway in Myanmar occurred in a rare display of public outrage over the economic conditions within the country in February 2007. A group calling itself the Myanmar Development Committee called on the military rulers to address consumer prices, lack of health care, education and the poor electricity and infrastructure. Normally unseen in Myanmar, the protest was quickly broken up after only 30 minutes of activity. But it ignited some fires.

Past 19 years have seen several movements, but these were crushed by the well armed  military junta that had been getting tacit support from China, India and its immediate neighbours who have not put  enough   pressure to get democracy back on rails in that hapless poverty stricken country.  In fact, apart from some noises by American, and European Union in the United Nations assembly last week, the world has been silently watching the suffering of the millions of people including their heroic leader Aung San Suu Kyi who has been under detention for as many years. This Nobel laureate is one source of inspiration for the people. India has reacted only by asking the military junta to initiate dialogue.

The question is whether the countries with the greatest influence on Myanmar generals will exert to find a peaceful solution and out democracy back. China, Russia and India, which all sell weapons to the army, as well as the members of the Association of Southeast Asian Nations, that, are Myanmar’s immediate neighbors can do much. It is essential that they speak up fast, before more blood is spilled. International community must not run away from its responsibility.

In a desperate bid to cling on to power, Burma’s military junta treaded heavily on the country’s rich Buddhist traditions, of all days, a religious holiday, when people usually spend their time in prayer at the hundreds of pagodas that dot this country.  The crackdown demonstrated that brutal junta has no respect for any religion or democracy. There was little mercy for the unarmed, barefoot Buddhist monks, who for days had been chanting the ‘metta sutta’, a prayer for loving kindness, and raised the cry for democracy, during streets protests challenging military’s sinful grip on power.

Monks were set upon all day by squads of armed riot police in Rangoon and other cities and towns. Unmindful of the fact that it was a full moon day, and therefore sacred to Buddhists, many were beaten.

According to Inter Press Service report,”A scene that unfolded near the most sacred Buddhist temple -- the Shwedagon pagoda -- before the violence began conveyed the junta’s mindset towards dissent, even if it was expressed by monks who are held in high regard in this country. As a group of monks began marching down the street, they were stopped by armed riot police. The men in robes responded in a peaceful gesture, kneeling before their adversaries and asking permission to enter the pagoda. The retort the monks got was a blunt one from a member of the armed riot squad: ‘’we have got orders to shoot.’’

Such a tough response that was echoed across Rangoon turned the mood of this city to one of rage. People who had come to support the monks in another day of protest soon began chanting angry slogans. ‘’The military training you got was not to kill people,’’ chanted a chorus of enraged women as they faced armed troops.

The monks were no different in their mood. Gone was the image of quiet resistance that thousands of them had displayed as they led civilians in street demonstrations that reached over 100,000 this week, a number not seen in nearly two decades. ‘’We don’t care about the security forces. We will go on with our march,’’ a young monk said in a defiant voice. Even after killings and tortures and arrests there is no stopping.

Return power to original owners

Little wonder that senior members of Burma’s democratically-elected government in exile feel that the violence will only escalate, given the regime’s attack on such sacred symbols as Buddhist monks. ‘’This has already angered the people. There will be more animosity by the monks towards the soldiers and their commanders,’’ Sann Aung, a minister in the National Coalition Government of the Union of Burma said in Bangkok.

There is clear division between the junta and the clergy. The monks have unanimously ‘’excommunicated’’ the military and their supporters from Buddhism. One senior monk in Rangoon went a step further and wrote a letter to Burma’s strongman, Senior General Than Shwe. This letter was released by the Hong Kong-based Asian Human Rights Commission. ‘’The original owners of power, the people, have been made innocent victims: more and more repressed and poor and impoverished,’’ stated U Thangara Linkara, a senior abbot at the Dhamma Yeiktha Monastery.

The protests seen on Burmese streets are the largest since a pro-democracy uprising in 1988, which was brutally crushed by the military regime of that day. Some 3,000 pro-democracy advocates were killed. The military in power for 45 years has shown little remorse over those deaths.

China has been quietly nurturing ties with democratic and ethnic groups at odds with Myanmar's military government, partly hedging bets in the restive Southeast Asian nation even as it avoided openly criticising the junta.

China has been a steady friend of the generals who have ruled for decades in Myanmar, also known as Burma, standing by them after they crushed a pro-democracy uprising in 1988 and then swept aside a 1990 election won by Nobel laureate Aung San Suu Kyi and her National League for Democracy. But unless china speaks out, no one believes that it wants the return of democracy there. In January, China blocked a UN Security Council resolution on Burma. So the generals are likely to want to avoid a response harsh enough to propel Beijing into the camp of those at the United Nations calling for some kind of international initiative.

Burma has quite large armed forces for a country of about 50 million people. According to the International Institute for Strategic Studies, the army amounts to some 350,000 personnel, and there are nearly 110,000 paramilitaries.

Current turmoil could divide the junta and the armed forces as Buddhists take to next stage of their struggle for emanicipation.

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