Ramifications of Mumbai carnage

Huzaima Bukhari & Dr. Ikramul haq

 

Three-day carnage in Mumbai—blatant acts of terrorism at various places from November 27-29, 2008—targeting common people and leading hotels jolted the entire India and world at large. This raised some important questions about the future of democracy, ‘war on terrorism’ (sic) and survival of modern day societies. Human societies secured freedom from political, economic and socio-religion shackles that have bound men for many centuries after a strenuous and protracted struggle during the last century. The US policy of aggression in the wake of 9/11 has created serious apprehensions of losing freedom by these societies by every passing day. Terrorism like fascism is a self-destructive ideology. It spreads like fire of jungle.  If humanity wants to fight terrorism, it will have to understand the factors behind this ghastly phenomenon. Use of brutal and ill-directed force will be self-defeating exercise in futility. Violence breeds violence as hatred breeds hatred. What happened in Mumbai exposes the shallowness of the approach of ‘big democracy’ becoming part of so-called ‘war on terrorism’—a tool in the hands of neo-colonialists to earn billions by selling arms, make sure the developing countries do not join hands against them and keep growing economies under their control. 

 

Fighting the agenda of neo-colonialist is the need of the hour. Uniting against neo-colonialism is the only way to counter terrorism. Use of force and denial of peoples’ legitimate rights on the contrary is bound to provoke more terrorist acts around the world. The violent incidents in India, Afghanistan, Kashmir, Spain, London, Ireland, Iraq, Palestine and elsewhere are self-evident. The doctrine of right of pre-emptive strikes, which India is thinking on the dictates of neo-colonial forces, is only a short-term solution. In the long-term, the governments of the world will have to sit down and chalk out a comprehensive strategy to ensure that miscreants, funded by neo-colonialists, are dealt with a strong hand without disturbing the peace and tranquility of individual societies and the world as a whole. The most important question faced by humanity is whether we are afraid of freedom or want to preserve it for our future generations. All the terrorist attacks constitute a strike against freedom but at the same time are reflective of callous attitude of those who claim to be self-appointed guardians of free world, human rights, faith and freedom. In a unipolar world, after the debacle of communist oligarchy, the responsibility of western democracies has increased manifold to assure the common people of the world that absolute power in their hands does not mean high-handedness towards others.

 

There are certain forces having vested interest to push the mankind back towards the dark ages when inalienable fundamental rights were denied by the authoritarian rulers. There are debates inside the USA and elsewhere pinpointing the erosion of civil liberties on a massive scale in the name of defending the Frontiers of Freedom. Terrorism surfaced as a reaction towards growing “fascism” on the part of certain States—handling of Palestinians and Kashmiris are cases in point—. Thus it has to be understood in proper perspective. The analysis of character structure of a man is at the core of understanding the rising phenomena of fascism, fanaticism, fundamentalism and terrorism [which includes state terrorism]. Lack of rationalism on the part of the powerful to be fair towards the powerless has converted our world into a place full of misery, destruction and unhappiness. The frustration of the powerless gets its vent in ghastly acts of terrorism and destruction. If we want to change this situation drastically, a balance has to be struck between the powerful and the powerless. If a large segment of the world lives in a state of powerlessness, the powerful will always remain the target of hatred and attack. The powerful want to transform the world as a machine where all others act as a cog while he has the master control. The cogs have their own way to develop malfunctioning to deprive the master from its absolute control.

 

This authoritarian thinking on the part of the powerful “democracy” and mechanism adopted e.g. imposing economic blockades was certainly the most irrational action to counter mass movement for independence in the Kashmir valley. The oppressed and powerless have their peculiar ways of reacting, which by no means can be expected to be according to the norms of internationally agreed principles. Their destructive tendencies (suicide bombings and terrorist attacks) are symptomatic of a sick world order. Our world is fast emerging as an authoritarian global State reminiscent of fascist systems of the last century practices in Germany and Italy where the dominant role of authority in social and political structure rests with the dictators. The revival of dictatorial State orders in the name of security needs is a step towards fascist systems.

 

The likely threat of military attack by India on Pakistan as post-Mumbai reaction using the pretext of State-patronage of extremists (sic) will create fear and uncertainty in the region and panic amongst masses. The main aim behind the bizarre scheme, prepared by neo-colonialists, is to push the armed forces of Pakistan to the wall using India as conduit, get the control of nuclear arsenals and use bogey of “Islamic terrorism” for the containment of China. George W. Bush Jr., now lame-duck President, before leaving the Oval, wants to ensure that the new man taking his place should have no option but to remain engaged in wars in various parts of the world. One hopes that Indian and Pakistani leadership will understand this great conspiracy. It is the time Chinese, Indian and Pakistani leaders unite against the forces of neo-colonialism and foil their ‘Great Game’ plan.

 

Dr. Sachithanandam Sathananthan in his ‘Great Game continues’ has remarkably summed up that “The ‘war on terror’ and ‘promoting democracy’ are the 21st century equivalents of the 19th century British gobbledygook. American Late Neo-colonialism purveys them as moral justification and uses as political cover for intervening and, where necessary, invading resource-rich and strategic countries to overthrow nationalist leaders, install puppet regimes and savage the countries’ wealth. And of course the US is by far the most powerful terrorist force”.   This is the reality of ‘war on terrorism’. The forces of obscurantism and imperialism appear to be enemies, but in fact they are ‘friends-in-arms’ and their hidden agenda is to snatch away from the world, its peace and tranquility. Thus Bush camp is no different from that of Bin Laden or Taliban or RSS-BJP-VHP- Bajrang Dal.

Today the humanity at large is facing the most difficult time at this critical juncture of history. The brinkmanship on the part of USA and its allies can lead the world to yet another horrible World War. The sane people in India and Pakistan should resist all the extremist forces that are involved in destabilizing the entire region at the command of their foreign masters. Both the governments should expose these elements and pray tributes to Karkare and other brave ATS men who had shown the courage to arrest Praggya Singh, Raj Kumar Purohit, the ugly faces behind terrorism and communal killings.

 

Let us hope that the forces of peace and sanity get united to stem the rising tide of terrorism, communalism and obscurantism, which is designed, funded and controlled by neo-colonialist forces pointed out by Dr. Sachithanandam Sathananthan, a Visiting Research Scholar at the Jawaharlal Nehru University School of International Studies. These forces are the worst enemy of humanity. They are bent upon to create fasad [Quranic term for chaos, disorder and turmoil] on this beautiful planet. The holy Quran clearly warns humanity about these so-called “reformers” who in the name of God and reformism create the worst kind of disorder [fasad] on the earth [Al-Quran 2-11]. The meaning of this ayat is:

 

“When they are asked not to spread fasad [disorder] in society, they retort audaciously:

 

“We do not spread fasad, rather we are the Musleheen [reformers]”.

 

Beware! They are the Mufsideen [Destructionists, those who spread disorder and chaos]”.

 

It is high time that masses all over the globe understand and reject the agenda of war-mongers and their hired defenders of faith (sic). They are the worst enemy of humanity. The hidden agenda of neo-colonialists can only be frustrated if people of the world unite against the Mufsideen, who in the name of religion, want to create disorder but their real aim is subjugate and control the world for economic exploitation.

 

The writers, tax advisers, are visiting professors at the Lahore University of Management Sciences (LUMS).

Reconceptualizing Jihad

Huzaima Bukhari & Dr. Ikramul Haq

 

 

Dr. Ayesha Jalal, eminent historian, in Partisans of Allah: Jihad in South Asia has brilliantly traced the root and dimensions of jihad as anticolonial ideology that helped the subjugated masses under British raj to wage a valiant struggle for independence. The need stressed by great Muslims thinkers, Shah Waliullah, Obaidullah Sindhi and Muhammad Iqbal, to wage continuous war (jihad) against imperialism as everybody’s human duty, notwithstanding religious affiliations, is valid for all times and nations. These great thinkers unequivocally emphasized and repeatedly underscored that jihad (literally means continuous struggle) has multi-faceted dimensions with the main underlying objective of establishing a human society free of every kind of exploitation and oppression, based on the principles of justice and equality, and ensuring peace and tranquility for all.  Such a society cannot be established by ignoring the ethical dimensions of jihad that requires an individual to strive (inner struggle) for achieving the status of an authentic being—a process turning a man into human.

 

Humanisation of world societies based on broader ethical connotations of jihad can guarantee international peace and prosperity. On the contrary, Western imperialism (capitalism at its roots) is the biggest hindrance in the way of this process. The recent debacle of financial institutions of USA and Europe, considered as pillars of capitalism, and rescue plans (sic) underway has once again exposed the emptiness of models based on exploitation, greed and self-interest. In the present-day scenario, jihad, as a tool to fight all kinds of oppressions, inequalities, injustices at individual and collective level, holds key to forging human unity an international level. Knowing the consequence of such a unity, the forces exploiting world resources at the cost of poor nations, are purposefully portraying jihad as hostile ideology (synonymous with terrorism). This projection of jihad in Western media is part of a great conspiracy. In this game plan, the despotic Muslim rulers and clergy are their friends-in-arm. Jihad as aggression is a misnomer, for which the blame is to be shared equally by the fanatic, self-acclaimed warriors of faith and ardently-biased-anti-Islam intellectuals (sic).

 

The self-proclaimed defenders of faith have never bothered to study and understand Quranic concept of jihad. Unfortunately, malpractices committed by abusing this concept for temporal gains by Muslim Kings and clergy were accepted as scared by many. Their opponents took full advantage of this ignorance and started calling jihad as ideology of aggression and hate. Various wars waged in the name of religions, the recent example is Bush’s claim of ‘divine guidance’ for aggression in Iraq, were nothing but efforts to secure hegemony and seek temporal gains. These objectives are alien to Quranic concept of jihad. The difference between jihad (all-pervasive struggle at all levels to establish a just human society as ordained by Allah) and qital (a war for self-defence against oppression) is so unambiguous in Quran that it needs no elaboration at all. There is nothing in Quran that allows killing of any human being in the name of Allah, as misunderstood by many Muslims and non-Muslims alike. In Quran, the sanctity of human life is stressed to the extent that killing of one human being is considered as murder of entire humanity and saving one individual life is tantamount to serving the humanity at large. In the presence of this injunction, how can any Muslim resort to taking life of another human being? How can suicidal bombing be justified? Even when war is declared by an oppressor, the right to self-defence cannot be tainted with any vendetta and is made conditional that no harm is caused to women, children or any non-combatant. Waging of jihad, using the term in its true sense, is not only against external aggression, but also to counter internal forces of exploitation, oppression and tyranny in any society. In the case of former, armed struggle is inevitable (for which deterrence and defence is ordained) but for the latter there is no sanction to use any coercive measures, not to talk of violence and arms, as there is no jabar (forceful submission) in din (Islam).

 

During the colonial era in the subcontinent, armed struggle waged by freedom fighters (without any religious divisions) earned them praise and kudos from the great thinkers of their times. These thinkers through their writings also waged jihad bi qalam (struggle through pen), considered as the great jihad (see Maulana Abul Kalam Azad’s treatise, jihad-al-akbar). This great literature of resistance is now common heritage of people of India, Bangladesh, Pakistan, Myanmar and Sri Lanka. In the post-independent period, this literature remained a source of resilience and self-esteem to resist neo-colonialism. Under the banner of Non-Aligned Movement, the legacy of resistance continued with the aim not to succumb to the onslaught of neocolonial imperialism. Unfortunately, in the post 9/11 era, the imperialist forces cleverly managed to counter genuine resistance movements against their occupation and hegemonic designs under the pretext of “war on terrorism”. This is, no doubt, the ugliest strategy of neo-colonialists, in which religious fanatics are their main soldiers, who are responsible for giving jihad (a purely humanistic and ethical concept) a contemptuous name.

 

The armed struggles against occupant forces in Palestine, Afghanistan, Iraq, Kashmir and elsewhere, are in their substance movements against subjugation. But these are successfully labelled as militancy or terrorism by the influential media that shape the international opinion at the behest of US and its blind allies.  Under these circumstances, one needs to reconceptualise jihad as “struggle against subjugation” and re-devise methods to counter it through peaceful means rather than arm conflicts. Entering into armed conflicts is fulfillment of the agenda of the neo-colonialists, who want to engage the nations in brutal and bloody wars for their own nefarious designs.

 

In Pakistani context, we are faced with multi-faceted subjugation. Our subjugation is largely, a self-inflicted phenomenon. The leadership—military and civilian alike—has surrendered completely to foreign masters. Though moral sinking of the leadership is becoming deeper and deeper every day, yet people of Pakistan have not yet surrendered and are showing resilience even in the extreme hardship times when basic necessities like wheat flour has been rendered a rare commodity for them. The economic subjugation, dictates of IMF and other donors, wrongdoings of the people at the helm of affairs, unprecedented luxuries enjoyed by the rulers at taxpayers’ expense—all cumulatively—have culminated in a situation where a nuclear-State has become totally toothless.

 

Political and economic subjugation is now complete with control over federal government by Pakistan People’s Party, led by President Asif Ali Zardari. His recent appeals to UK and USA not to violate territorial boundaries of Pakistan are nothing but utter submission before those who are the main cause of present-day crisis in our tribal areas and Swat. The forces of obscurantism, so-called Jihadis creating fitna (social disorder and sedition), are being used by these imperialist forces to make us subservient for ever, keeping us in dark ages. The need of the hour is to mobilize people against imperialists and their cronies—the militants who are exploiting religion for self-interest.   

 

In these circumstances, how can the concept of jihad be recoceptualised? Obviously, for resisting subjugation, we need to wage jihad against attacks of foreign forces in our tribal areas, rising wave of militancy, horrifying debt burden, worsening balance of payment position, rising inflationary expectations, undesirable increase in wasteful expenditure of over Rs.500 billion, which include heavy cost of perquisites of rulers, growing unemployment, social unrest, widening trade and fiscal deficits, rising cost of doing business, burden of taxes, increases in utility bills and economic stagnation—just to mention a few.

 

The economy is fast plummeting and worse is still to come if curative measures are not taken on war footing. People’s purchasing power is fast diminishing, banks have less liquidity, lending rates are soaring and activities at stock markets are nose-diving. The investors are shy and afraid, mainly due to perpetuation of political instability and economic uncertainty. Life for the common man on the streets is becoming a misery leading to social restlessness. Although we claim to be an agricultural economy yet a vast majority of the people do not have enough to eat. It is tragic that we even import agricultural products and have miserably failed to develop any worthwhile agro-based industry in the last 61 years. What a decline from the times when this region (i.e. United Punjab before partition) had the undisputed position of being the granary of the entire Subcontinent.

 

Look at the mess our successive governments, military and civilian alike, created on the debt front. The figure of foreign debt is a monstrous $48 billion after devaluation of our rupee in the last few months and that of domestic debt is over Rs.3.5 trillion now.  Both external and internal debts are increasing at a frightening rate. The way we are managing our resources (not exploiting them or wasting mercilessly those already available) is criminal and is leading us to self-annihilation. Fiscal deficit of Rs. 777.2 billion during fiscal year 2007-08 testifies to bankruptcy of our political leadership, who keeps on relying on incompetent and corrupt bureaucracy. The policy of appeasement towards tax evaders, money launderers and plunderers of national wealth, many of them beneficiaries of National Reconciliation Ordinance (sic), is showing its impact in all spheres: political culture of changing loyalties, as seen in the presidential election, is absolutely loathsome, nation is in high despair and all sectors of economy are showing horrible indicators. In this bleak scenario, our rulers have no definitive plans; begging all around, they are still living on ad-hocism.  

 

The most disturbing and painful reality is the unabated and shameless indulgence of rulers and bureaucrats in wasteful expenditures. Look at their life style (numerous iftar dinner parties were thrown by rulers from national exchequer in September alone) when the vast majority of the people is starving. We cannot come out of subjugation unless we first become an economically self-reliant nation, which is the most vital jihad of today. For this, our rulers will have to take the first step by learning to live at a modest level (following the example of Iranian President), establish just economic system, provide justice to all, and then mobilize the masses for common struggle to take a great economic leap forward as done by the Chinese in recent times.  

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The writers, researchers, historians, tax advisers and authors of many books, are visiting Professors at the Lahore University of Management Science

Understanding and combating terrorism

Huzaima Bukhari & Dr. Ikramul Haq

 

The blatant act of terrorism in Islamabad on September 20, 2008 targeting Marriott Hotel jolted the entire nation and world at large. This raised some important questions about the future shape of ‘war on terrorism’ and survival of modern day societies. Human societies secured freedom from political, economic and socio-religio shackles that have bound men for many centuries after a strenuous and protracted struggle during the last century. The 9/11 and subsequent incidents are creating serious apprehensions of losing freedom by these societies by every passing day. Terrorism like fascism is a self-destructive ideology.  If we want to fight terrorism we will have to understand it. Wishful thinking about military might and invincible air strike power will not help to win the war against something that relates to human behaviour. Use of brutal and ill-directed force against a few groups, dubbed as terrorists by United States and some of its blind allies, without eliminating the causes leading to “terrorism”, will be inadequate and self-defeating exercise in futility.

 

Humanization of world societies is the only effective tool to eliminate terrorism. Use of force and denial of peoples’ legitimate rights on the contrary is bound to provoke more terrorist acts around the world. The violent incidents in Afghanistan, Kashmir, Spain, London, Ireland, Iraq, Palestine, Beslan and elsewhere are self-evident. The doctrine of right of pre-emptive strikes and attack is only a short-term solution. In the long-term, the governments of the world will have to sit down and chalk out a comprehensive strategy to ensure that miscreants are dealt with a strong hand without disturbing the peace and tranquility of individual societies and the world as a whole. The most important question faced by humanity in the aftermath of 9/11 is whether we are afraid of freedom or want to preserve it for our future generations. All the terrorist attacks constitute a strike against freedom but at the same time are reflective of callous attitude of those who claim to be self-appointed guardians of free world, human rights, faith and freedom. In a unipolar world, after the debacle of communist oligarchy, the responsibility of western democracies increased manifold to assure the rest of the world that absolute power in their hands does not mean high-handedness towards others.

 

The mankind after much struggle and paying a heavy price learnt the principles of economic liberalism, political democracy, religious freedom and individualism in personal life. There are now certain forces having vested interest to push the mankind back towards the dark ages when inalienable fundamental rights were denied by the authoritarian rulers. There are debates inside the USA and elsewhere pinpointing the erosion of civil liberties on a massive scale in the name of defending the Frontiers of Freedom. Terrorism surfaced as a reaction towards growing “fascism” on the part of certain States is a human problem which needs to be understood. The analysis of character structure of a man is at the core of understanding the rising phenomena of fascism, fanaticism, fundamentalism and terrorism [which includes state terrorism]. The economic imbalances within a society and from global perspective, revival of religious movements (primarily a camouflage to manifest certain political aims) and imposition of will of the mighty on the weak have all given rise to what culminated in the shape of 9/11 in 2001 and events thereafter which have created worldwide turmoil and reign of fear.

 

Freedom of expression per se has been considered as sufficient fulfilment of the need to achieve a democratic society. The fall out of this fulfilment appears to be a misconceived notion on the part of individuals and groups that freedom of speech ipso facto gives them an authority or a license to impose their own ideas on others using money, power and physical force as means. They are not only intolerant towards others’ views but also suffer from the misconception that their ideas are the only truth through which the world can be changed into a wonderful place. The terrorists think their way of thinking is the correct version of life and the so-called defenders of freedom [who in substance are reincarnated fascists] are of the view that they hold the ultimate truth. Neither side is ready to open a dialogue. Both the sides have a non-comprising attitude when matter comes to ideology. This growing authoritarian thinking has led to a perpetual confrontational world in the 21st Century. In all the tumultuous areas in the world the main reason for unresolved disputes is this stubborn attitude on the part of the parties in conflict.

 

Lack of rationalism on the part of the powerful to be fair towards the powerless has converted our world into a place full of misery, destruction and unhappiness. The frustration of the powerless gets its vent in ghastly acts of terrorism and destruction. If we want to change this situation drastically, a balance has to be struck between the powerful and the powerless. If a large segment of the world lives in a state of powerlessness, the powerful will always remain the target of hatred and attack. The powerful want to transform the world as a machine where all others act as a cog while he has the master control. The cogs have their own way to develop malfunctioning to deprive the master from its absolute control.

 

This authoritarian thinking on the part of the powerful and mechanism adopted by him e.g. imposing economic sanctions is most illogical and irrational way to fight a war against fundamentalism and terrorism. The oppressed and powerless have their peculiar ways of reacting, which by no means can be expected to be according to the norms of internationally agreed principles. Their destructive tendencies (suicide bombings) are symptomatic of a sick world order. Our world is fast emerging as an authoritarian State reminiscent of fascist systems of the last century practices in Germany and Italy where the dominant role of authority in social and political structure rests with the dictators. The revival of dictatorial State orders in the name of security needs is a step towards fascist systems. On global level, there are now open expressions of superior and inferior statuses while entering into relations with different States and blind admiration of the unipolar force. This is like pushing the entire World to Ground Zero.

 

In devising military strategies to fight the forces of fanaticism and terrorism, the people at the helm of affairs should not overlook the human side of the whole problem. Freedom and democracy are inseparable. The right to express our thoughts clearly means something only if we are able to have thoughts of our own. If the media and state machinery is shaping the thoughts of everybody then where is freedom of expression? If one does not have his own thoughts what does democracy mean?  If the shape of the world is to be determined by a handful of people having known economic interests [who want to make oil and political maps right] then of what need is freedom for the common man? In the wake of 9/11 there is skepticism and cynicism towards everything. The future of freedom and democracy is at stake.

 

Looked at superficially, people in various societies may appear to be functioning satisfactorily in economic and social life: yet it would be dangerous to overlook the deep-seated unhappiness behind that comforting veneer. The loss of substantial human lives in brutal attack at Marriott Islamabad (named Pakistani 9/11) and atrocities committed by drone bombings in various parts of the country resulting into death of innocent civilians are interlinked, painful action-reaction chain. Human despair in the wake of these gruesome happenings is not an isolated individual experience of a community but a world-wide feeling on a political scale where dominant thought is losing of freedom at individual level at the hands of forces of obscurantism and fanaticism, which lack sanity and respect for human life. Those who are encountering it with military might are equally mindless of the fact that suppression of individuals and governments cannot win any agenda against terrorism. Erich Fromm in Free of Freedom rightly concluded, “The victory over all kinds of authoritarian systems will be possible only if democracy does not retreat but takes the offensive and proceeds to realize what has been its aim in the minds of those who fought for freedom the last centuries. It will be triumph over the forces of nihilism only if it can imbue people with a faith that is the strongest the human mind in capable of, the faith in life and in truth, and in freedom as the active and spontaneous realization of the individual self”.

 

The same is true for victory against terrorism. In order to secure triumph over the forces of destruction and disruption, the people will have to unite and convince the fellow human beings of faith in life, freedom and truth as the active and spontaneous realization of individual self. This in possible only in a world that is free of authoritarianism, exploitation and injustice.

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The writers (ikram@huzimaikram.com) are researchers, legal historians, tax advisers and authors of many books on tax laws, narco-terrorism, global heroin economy and socio economic problems relating to our present day international society.

 

 

Rapid growth and social justice

Every year before the announcement of annual federal budget, plethora of tax proposals are received by the Federal Board of Revenue (FBR) from trade and professional bodies, tax bars and industry’s representatives. These are hardly given serious thought by the tax managers, who have only one concern: how to achieve revenue targets through wickedly drafted amendments and onerous tax regulations.

 

Taxation should serve as a catalyst for industrial expansion and economic growth. In Pakistan the ill-directed, illogical, regressive and unfair tax regulations for the last many years have caused a dampening effect on the industrial and business growth.. Had the successive governments concentrated on economic growth and industrial expansion, there would have been consequential substantial rise in taxes today. It is impossible to enhance revenues with stagnation in economy, and over-taxing such economy, as has been done in Pakistan, can destroy the revenue system as well. This is a vicious circle in which our policymakers are now trapped. They will have to find ways and means to come out of this tangle to make Pakistan a competitive place where investors find satisfactory conditions to live and invest. In a country where there is no security of life or property, notwithstanding the availability of host of tax benefits and other incentives, investors will never come forward.

 

It is a curious paradox of our situation that while money for worthwhile industrial and business growth and public benefits is scare, there is colossal unaccounted cash supply circulating in the economy in search of further undercover gains. What is more tragic is that this social evil inherent in tax system gets doubly compounded as it necessitates greater and greater tax burdens on those who are law-abiding. The most crucial problem faced by us in fiscal reform programme is that of devising astute and stringent measures to curb tax evasion so that we can distribute the burden of taxes fairly and justly between different persons in the same or similar walks of life. The honest taxpayers have to be safeguarded as day by day they are being disillusioned by the fact that tax evaders are not paying anything with the connivance of their friends and mentors in tax machinery. The unholy alliance between the tax evaders and corrupt tax officials has to be eliminated as a first and the foremost step if we want to initiate any meaningful change in tax system and achieve the goal of rapid economic growth.

 

Every now and then the State announces a tax immensity scheme that favours tax evaders, smugglers, corrupt, extortionists, drug barons and criminals. Such schemes are a spank for the honest taxpayers [proving them the most foolish for paying the taxes]. An extortionist in Karachi can decriminalize his ill gotten money through such a scheme but the poor businessman who paid it due to shameless failure or connivance of law enforcement apparatus cannot even claim it as an expense in his tax return! The situation needs to be corrected. The facilitation of whitening the untaxed money should be restricted ONLY for genuine businessmen to bring such capital back into disclosed/formal sector by paying some percentage as tax (as kafara) and not for the criminals, corrupt and unscrupulous elements in society.

 

There is a national consensus that existing tax policy needs to be reformulated to provide an equitable, pragmatic, investment-oriented and business-friendly tax system, integrating good tax administration with simplified tax laws that are easily to be understood and hassle-free from implementation perspectives. In the absence of a well-designed tax policy, the agenda of tax reform will remain lopsided. The new government should get itself free from the figure game of the FBR. Our tax potential is not less than Rs. two trillion provided the tax base is made wider and equitable, tax machinery is completely overhauled and exemptions and concessions available to the privileged sections of society are withdrawn. The following steps are inevitable if we want to make Pakistan a competitive place in today’s world:

 

1.      Establishment  of democratic institutions both in form and substance coupled with a truly independent justice system.

2.      Dispensation of justice without delay should be the top most priority of the State.

3.      Revamping of entire education system and ensuring revolutionary measure to take society out of jahalat [ignorance]. Our problem is not only illiteracy but also ignorance. Even the so-called literates are jahil of worst order, as they do not demonstrate by their actions any norms of a civilized society. The foremost stress should be on Iqra [knowledge] and technological advances.

4.      Elimination of bigotry, religious intolerance and violence by taking concrete measures to ensure social development of society based on higher values of life and humanity.

5.      Devising long-term and short-term strategies to break the shackles of debt-trap.

6.      Determination and political will to control wasteful, non-developmental and defence expenditure.

7.      Strict laws and their effective implementation to curb money laundering, plundering of national wealth, political write off of bank loans and leakages in revenue collections.

8.      Reform of technical, institutional and organizational dimensions of public finance.

9.      Improvement in public sector effectiveness.

10.  Reform and strengthening of management of public finances.

11.  Transparent public sector spending.

12.  Efficient public sector performance.

13.  Revitalization of tax machinery.

14.  Simplification of tax laws and procedures.

15.  Good governance and corrupt free government structures.

16.  Reduction in excessive marginal tax rates making them compatible with other tax jurisdictions of the world, especially in Asia.

17.  Substantial reduction in corporate rate of tax.

18.  Elimination of onerous tax and other regulations for corporate sector that are the main stumbling block for new direct foreign investments.

19.   Sufficient openness and accountability in the government to enable citizens to understand and participate fully in the process of national integration. This includes live telecast of the assembly proceedings.

20.  Complete transparency in government and private financial transactions.

The juxtaposition of economic policymaking and political reform [democratization] of society is necessary. The agenda for reform and survival should entail a comprehensive, well-integrated and unified plan that alone can assure its success. The reform in one sector ignoring the ills in the other, resorting to improving something at the cost of leaving aside the one interlinked, will not yield desired results. The case of tax reform divorced to elimination of black economy is the point in focus. The main cause of fiscal deficit is existence of an unprecedented size of underground economy and the share of incompetence and inefficient tax machinery is significant, but reform in tax administration alone without routing the causes of parallel economy is not going to improve GDP-tax ratio [which is below 10% for the last 10 years].

In the same manner mere constitutional changes giving more powers to Prime Minister will not improve the political culture. We cannot achieve the cherished goal of self-reliant Pakistan unless rule of law and democratic behaviour in practice is clearly demonstrated. In the presence of US-imposed and supported President, the goal of independent Pakistan free from the political clutches of Washington cannot be materialized. For a strong economy, resource mobilization through a growth-oriented tax policy is a prerequisite. Tax policy should induce rapid industrial growth, ensure equitable distribution of wealth and incomes and give the provinces due share in national resources and powers to levy taxes within their territorial jurisdictions.

One hopes that in the forthcoming budget, mindless and isolated changes will be avoided to further destroy our tax system unless tax policy imperatives discussed above are given due consideration. The change mania without proper direction can be counterproductive or even disastrous. This is what tax baboos of FBR have been doing for the last two decades.

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The writers, tax advisers, are visiting professors at Lahore University of management Sciences (LUMS). They can be reached through their website www.huzaimaikram.com

Stock Market Taxation

Huzaima Bukhari & Dr. Ikramul Haq

 

 

During the trading session on May 23, 2008, the Karachi Stock Exchange registered the highest single day loss surpassing the earlier figure of -635.80 (recorded on 05.11.2007) amid speculation that the index will fall even further. The Stock Exchange closed at -615 at 4.00pm. The downward trend is being attributed to increase in interest rates permitted by the State Bank of Pakistan and expected imposition of capital gain tax in the forthcoming Budget for the fiscal year 2008-2009. Each year, just before the announcement of the budget by the Finance Minister, a bearish trend is witnessed, but this year, despite there being a people’s elected political set-up, the situation is quite alarming, especially for small investors.

 

If the entire issue is revolving around the statement of Mr. Ishaq Dar reported on 13 May 2008 in Dawn newspaper under the title, “Several new taxes in budget, says Dar”, that there is a need to impose capital gain tax then for the awareness of the general public there already exists such a tax under section 37 of the Income Tax Ordinance, 2001 (hereinafter “the Ordinance”). Besides, section 233A of the Ordinance requires registered stock exchanges to collect advance tax from its members at the rate of 0.01% on sale/purchase of shares and trading of shares; and 10% in respect of financing of carryover trades in share business. Additionally, another tax known as Capital Value Tax which came into existence vide Finance Act 1989 is also in the field and is chargeable as per section 7 of the Act, on the capital value of purchase of modaraba certificates or a registered instrument of redeemable capital as defined in the Companies Ordinance, 1984, or shares of a public company listed on a registered stock exchange in Pakistan. 

 

Section 37 of the Ordinance explicitly speaks about a tax on gain arising on the disposal of capital asset that includes stocks and shares and such movable properties in personal use as a precious work of art, jewellery, rare manuscript, folio or book; a postage stamp or first day cover; a coin or a medallion; or an antique. No doubt, there are certain concessions with respect to assets retained for a period of more than one year and there are some exemptions on the gain of certain stocks and shares but this certainly does not imply that there is no capital gain tax in Pakistan. In fact, collections as reported up to June 2006 and June 2007 are as follows:

 

Head of Payment	June 2006	June 2007
u/s 233A	2,595.8 million	5,920.7 million
CVT on purchase of shares	1,440.3 million	2,238.5 million

 

The figures clearly speak of the amount of tax that is related to trading in stocks and shares. With these taxes already in existence, it is quite surprising that ex-Finance Minister was talking about levying capital gain tax! This clearly speaks of how ill-informed the members of our political parties are.

 

It is very strange that Chairman FBR has not explained the correct position and the prevalent impression that exemption is given to investors in the capital market has not been contradicted by the official quarters till today. On the one hand, stock market investors have contributed substantially towards revenue as evident from the above figures while on the other, they are being accused of enjoying some imaginary tax benefits.

 

The role of capital markets in development of economy like Pakistan needs no emphasis. This avenue provides great opportunities to small investors to earn dividends from scrips of good companies. The companies also strive hard to enhance the value of their scrips. This creates an atmosphere of confidence and a favourable investment environment. The growth and promotion of capital markets depend on political stability and any negative news badly affects its working. Speculators immediately take advantage of such panic. During the last many days due to all kinds of negative and alarming news in the media, the signals reaching the stock market are creating devastation. The main reason behind the crash is political uncertainty and expected clash between the Parliament and the President.

 

In fact Musharraf is singularly responsible for this chaos. He is repeatedly claiming to stick to the post for another five years despite the clear verdict of 18 February 2008. Even Zardari has declared him the main hurdle between the people and democracy. Its about time to save economy, stock markets and democracy in Pakistan by stabilizing the system. Our stock market has tremendous potential to grow provided that political forces give the nation assurance of cohesion, unity, peace and security.  

Benefitting the rich

Huzaima Bukhari & Dr. Ikramul Haq

 

 

“Loss leaves us empty – but learn not to close your heart and mind in grief. Allow life to replenish you. When sorrow comes it seems impossible – but new joys wait to fill the void.”

Pam Brown

 

 

Wealth Tax Act, 1963 was abolished through the Finance Act 2003 on specific demand of ex-Prime Minister-cum Finance Minister Shaukat Aziz before taking charge as Finance Minister of Pakistan. He being an intelligent man was fully aware of the fact that by virtue of his status as resident in Pakistan, his world assets would attract provisions of the Wealth Tax Act culminating into substantial tax liability on annual basis. After 9/11, since the country was in a “critical state” (as portrayed by Musharraf) where the services of one individual were totally indispensable, the repeal was shown to be justified despite tremendous revenue losses, and the resultant misery inflicted on the majority of the people of Pakistan.

 

Today, our financial wizards are talking about financial impediments inter alia fiscal deficit of 9 % of GDP and extra borrowing of over Rs. 5 billion, mercilessly wasted on the endless non-developmental expenditure, lavish perquisites of the ruling elite and to make good this loss, the only option in their view is raising the prices of oil (knowing very well that such raise triggers rise in cost of living pushing the poor strata further down the poverty line). Instead of resorting to recovering all losses from the poor and hapless of this country why is not any attempt being made to recover from those who are actually responsible, some being beneficiaries of loan write-offs? Is it because in doing so, they themselves will have to bear the burden as well?

 

In 2002 before its abolition, wealth tax was the only progressive tax left in Pakistan with tremendous potential for growth, if exemption given to the rich absentee landlords were scrapped. This became obvious immediately after its repeal when billions of rupees (estimated at US$ 60 billion) started pouring in from all over the world remitted by all and sundry without any fear of being investigated, courtesy amnesty given in section 111(4) of the Income Tax Ordinance, 2001.  Influx of enormous wealth was directed to the stock exchanges where the dominant stake-holders continued to gobble the small investors through unholy maneuverings; or was used to enhance real estate dealings. With no wealth tax to pay, both these avenues helped to increase individual wealth but dreadfully stripped the entire nation of its right to live in peace and economic prosperity.

 

This also soared up investments in non-productive sectors, with people refusing to take risks on industrial projects that could have proved more beneficial to the masses. The high tendency to make easy money through stock exchanges and land dealings has resulted in retardation of economic growth for the poor, whose life is totally dependent upon earning daily wages. The last five years have negatively flung Pakistan’s economic condition not just ten years back, but many decades. With marked rise in population, with no attempt to increase resources or even improve the existing ones, with the divide between the rich and poor touching dangerous levels, with continuous political turmoil and to top it all, reliance on an extremely regressive tax system, one can confidently say that our country is now on the threshold of economic collapse unless serious measures are not adopted to veer it off this perilous track.     

 

What is preventing our elected coalition government’s highly qualified finance ministry from recuperating billions of worth of taxes by restoring the Wealth Tax Act? Instead of increasing oil prices (where per litre tax component is over Rs. 25) why is there no attempt being made to impose heavy taxes on those who enjoying colossal wealth and enormous income do have the ability to pay?

 

Looking at the Press reports, it is disturbing to see that some of our retired generals are adjudged as the richest in the world by TIME magazine. Besides, our elected representatives in the past have proved that they are far better at asset and wealth management than fund managers and investment bankers of Pakistan. These people are extremely competent at creating personal wealth but prove utterly hopeless in increasing national wealth for now nearly 180 million people of this country. The rich Prime Minister-cum-Finance Minister did not establish any charitable institute by giving donation out of his mega wealth, nor are the present ones ready to do so. On the contrary, the National Police Foundation “allotted” two plots to him in E/11, Islamabad at throwaway prices of Rs. 1.1 million and Rs.0.24 million which, within a year’s time attained market price of Rs. 12.5 million and Rs. 1.5 million and in 2008 rising to thirty times the original price paid! Supreme leader of King’s party, PML(Q), Chaudhry Shujat Hussain, another exceptional wealth manager who pole-vaulted from net wealth of Rs. 74 million to Rs. 146 million in just 12 months (see his latest declaration before the Election Commission). These two examples are merely illustrative of the over-all pattern of phenomenal increase in the wealth of ruling elite: powerful civil-military complex, greedy politicians and unscrupulous businesspersons.

 

Over the last many years, tax policies have been formulated serving the interest of billionaires (including the ruling elite, wealthy generals and high-raking civil bureaucrats, industrialists and rich property owners) and that too at the expense of the poor.

 

• In the last two years alone, revenue loss on account of income from property is estimated at Rs. 80 billion as per survey of the PT-1 forms of the Excise and Taxation Department of the Government of Punjab.
• Increased dependence on presumptive taxation has deprived the exchequer of Rs.150 billions of rupees in the pharmaceutical sector alone.
• From 2003 to date, according to a conservative estimate, we have lost Rs. 50 to 70 billions worth of wealth tax that could have been imposed on unaccounted/untaxed wealth amassed by those already enjoying the privileges of a luxurious life.

 

Claim of the authorities that wealth tax was useless as it did not contribute much to the exchequer (see government-fed report in Business Recorder dated 3^rd May 2008) speaks of the rigid target-oriented mindset that taxes are only meant to raise revenue. They forget that wealth tax may be an outdated levy in civilized countries of the world (after achieving the supreme goal of creating an egalitarian society) but was specifically introduced in the Sub-continent because of the tendency of third world nations to invest in unproductive areas as gold, real estate, bank balances or even cash tucked away in hidden vaults. It was meant to discourage hoarding of precious wealth and directing it towards constructive sectors and economic growth, for which innumerable incentives were provided in the Act. What to talk of ordinary people, many of our own political elite have been found to be owners of unfathomable wealth, safe in Swiss banks and foreign countries. If they claim to be true representatives of the people, they owe it to this country to bring back all this wealth and if not surrender to the nation, at least be prepared to pay tax, due on it.

 

Besides, it is a fallacy which we have proved many a times that tax authorities can investigate into unexplained investment, expenses etc. Section 111(4) of the Income Tax Ordinance has rendered them helpless as it allows the taxpayers to whiten illegally earned income through an extremely simple and easily available procedure by going to a money exchanger and getting fictitious foreign remittance in his account after paying a nominal premium of 1 to 2 percent of the entire proceeds!. It is irrelevant to delve into such details at this juncture but suffice to say that section 111 is no remedy vis-à-vis taxing enormous wealth generated from untaxed and/or ill-gotten income/wealth.

 

The nation desperately owes explanation from all those in power:

 

• Why the privileged are continuously being favoured and poised against their own poorer brethren?
• Why is it that ordinary taxpayers having income of more than Rs. 500,000 are required to submit annual wealth statements whereas rich and mighty politicians, who have exempt agricultural incomes have not yet made public their declarations of assts?
• Why do they hesitate from paying wealth tax but charge Rs.25 per litre tax on petroleum products knowing very well that it is massively consumed?
• Why not restore earlier subsidy on petroleum products and make good the loss by levy of wealth tax?
• Why not curtail unnecessary and extravagant expenses on the establishment starting from the President house, to fill up the void?
• Why not reduce the number of ministers/advisers instead of following policy of appeasement and doling out public offices as if this nation was not burdened enough by worthless and incompetent bureaucrats?

 

Despite the bleak scenario, there is always a ray of hope that wisdom will prevail and someone whose heart is fraught with patriotism in the true sense of this word will rid this nation of the neo-colonial subjugation to those who are constantly dictating their terms to a leadership that is oblivious to the people’s woes and misery.

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The writers (ikram@huzaimaikram.com), tax advisers, legal historians and authors, are visiting Professors of Lahore University of Management Sciences (LUMS).

 

 

Federation and distribution of taxes

Huzaima Bukhari & Dr. Ikramul Haq

 

The governments in Pakistan, military and civilian alike, have failed to end injustice in all spheres of life and areas, but more tragically in distribution of taxes between the federation and the federating units. Assignment of taxes is a vital constitutional and political issue that has been blatantly ignored, resulting in there being no judicious distribution of taxes between the centre and the provinces. The imbalances and unjust monopoly of taxes by Islamabad is a perpetual source of disharmony between the Centre and the provinces. Mr. Yousaf Raza Gilani, unanimously-elected Prime Minister, in his maiden speech after winning the “historic” vote of confidence, made a pledge that Concurrent List in the Constitution will be abolished within one year. One wonders why it could not be dispensed with immediately when there has been consensus in both the houses that it denies fair and equitable distribution of taxing powers between the federation and the federating units.

 

It is an undeniable fact that Islamabad has always usurped the right of the provinces by levying sales tax and other duties at federal level on goods and services within their (provincial) territorial jurisdiction. In all major federations, e.g. USA, Canada and India, the federating units have the exclusive right to levy indirect taxes on goods and services generated within their geographical boundaries. In Pakistan, the federal government has vehemently denied this right to all the four provinces. Adding insult to injury the federal government is collecting huge amount of taxes through provincial government departments treating them as withholding tax agents without paying any service charges as envisaged in Article 149 of the Constitution. On the contrary, it charges 2% fee to provinces while collecting sales tax on services on their behalf! This dichotomy has never been contested by any provincial government.

 

Federal highhandedness in tax matters (by using both federal and concurrent lists) has destroyed the financial and economic rights of provinces. The provinces should have the exclusive right to levy taxes on goods and services within their respective physical boundaries, but the Federal Government blatantly encroaches upon their undisputed right by levying tax on goods and services under the garb of presumptive taxes in Income Tax. Such taxes cannot be termed as taxes on income (which the federal government is empowered to levy under item 47 of the Federal List) but tax on goods and services. It is a great tragedy that this argument was not presented in the Supreme Court when the constitutionality of such provisions was challenged in 1991 and the debate merely revolved around academic discussions over the concept of income. If the Federal Government can treat tax on goods and services as tax on income, as held by the apex court per incuriam (a mistaken judgement) in Elahi Cotton case PLD 1997 SC 582, then what will be the sanctity of division of fiscal powers provided in the Constitution of Pakistan between the Federation and the provinces.

 

Our tragedy is that on the one hand we have too many taxes in the country (federal, provincial and local, although the last two only generate negligible national revenue) while on the other, the benefits of revenue collection are not reaching the poor masses of the less privileged provinces. The few rich are the real beneficiaries of every luxury that is available. Fiscal gap is increasing every year despite five-year Tax Administration Reform Programme (TARP) initiated in 2002 with borrowed funds of US$ 100 million.

 

The prime reason for failure to stall ever-increasing fiscal deficit is that provinces have not been empowered to generate their own resources. They have been denied fiscal autonomy of levying taxes on goods and services. Since 1947 our rulers at the Centre have been treating the provinces in the same way as the British imperialists.

 

In fiscal year 2006-2007, total federal tax revenue by Federal Board of Revenue (FBR) was Rs. 843 billion. The Federal government showed total receipts (both tax and non-tax) at Rs. 1087 billion, out of which the provinces received as little as Rs. 437 billion. Interestingly, the federal expenditure under two heads alone i.e. defence and debt-serving was Rs. 515 billion. The over-all deficit suffered by the Federal government was Rs. 373 billion.

  

The Centre might have given away some of the federal taxes to the provinces, most likely sales tax as is the case in India, if the federal taxes collection had increased substantially, but tragically, despite all kinds of oppression, highhandedness, negative tactics, withholding of refunds and what not the FBR took four years —1998-99 to 2001-02— to cross from Rs. 307 billion to Rs. 401 billion — an average increase of Rs. 24 billion a year. From 2002-03 to 2004-05 FBR managed to increase revenue from 460 billion to 590 billion— a poor performance as average annual increase did not even cover inflationary impact.  In 2005-06, the collection was Rs. 710 billion, and the last year it was Rs. 843 billion. This year’s target of Rs 1025 billion already stands reduced to Rs. 950 billion, whereas our real potential is not less than Rs. 1600 to 1800 billon. FBR’s track record shows little possibility of achieving Rs. 2200 to 2700 billion mark in next five years to give a fiscal space both to the Centre and the provinces to come out of the present mess extending some relief to the poor and trade and industry for growth. Thus in the near future, if our federation-provinces taxing impediments continue, the country will remain in debt enslavement and more and more people will be pushed below the poverty line. If we want to come out of this crisis, there is an urgent need in Pakistan to reconsider equitable distribution of fiscal and taxing powers between federation and the provinces. Provincial autonomy is meaningless without fiscal rights and redistribution of income and wealth amongst all the federating units. It is hoped that some concrete measures will be announced in the forthcoming first budget of the new government, for achievement of these goals.

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The writers are tax advider ikram@huzaimaikram.com

Astringent legacy of May 12

Huzaima Bukhari & Dr. Ikramul Haq

May 12 of 2007 and 2008 will be remembered in Pakistani history as a tragic and lamentable day—a dictator with the connivance and support of certain forces managed to frustrate the aspiration of people to see their homeland a place worth living that holds a better future for the coming generations.  The expiry of second deadline of May 12, 2008, after a lapse of mutually-agreed and self-imposed condition of 30 days for the restitution of judges announced in Bhurban on March 9, 2008 and decision of PML(N) to quit from the coalition government may have made the dictator and his cronies happy, but disappointed the entire nation. People are in bewilderment over the indecisiveness of our political leadership (sic) and non-functioning of Parliament above the party lines on this very vital constitutional issue. The failure of long-drawn parleys between Asif Ali Zardari and Mian Nawaz Sharif and their teams in London on May 11, 2008 came as a rude shock for every citizen of Pakistan.

 

It needs to be remembered that Law Minister, Farooq H. Naek, immediately after the announcement of new deadline by Mian Nawaz Sharif in Lahore said “it may not be ‘final’”, yet the PML (N) leadership failed to read between the line messages. PML(N) should have gone for filing a Bill at its own in the Parliament for ‘Restitution of Judges Act 2008’ instead of relying on a “leadership” (sic) that ditched the  most-trusted man of Shaheed Benazir Bhutto, Makhdoom Fahim, on the dictates of Musharraf and handed over all the powers to a never-party-man, Rehman Malik. This was an ugly joke with the die hard party workers and those who made great sacrifices for the Bhuttos. PPPP of the Shaheed Zulfikar Ali Bhutto is different from the PPPP of Asif Zardari. It is thus not surprising that Zardari, Rehman Malik, Farooq Naek et al managed to hoodwink the top leaders of PML(N) by referring the matter to a five-member committee to ponder, deliberate and present a draft, which proved to be an exercise in futility. The delaying tactics employed by Zardari on the issue of restitution of illegally removed judges are deplorable and motivated to merely serve the self-interest of certain quarters. 

Undoubtedly, the political leadership of PPP has once again shown lack of commitment. Mr. Zardari may have many pretexts, valid or invalid, for not following the deadline(s) or deviating from the original declaration, promising the restoration of status quo ante of November 2, 2007 without any conditionality. But the nation will never forgive him for using delaying tactics and openly vowing to retain the judges who supported the dictator on November 3, 2007 and thereafter. 

 

The undoing of patently unconstitutional and shamelessly executed acts of November 3, 2007 and implementation of Murree Declaration of March 9, 2008 have great significance in determining whether 8-year-long dictatorial rule in Pakistan will end or not even after anti-Musharraf verdict of the masses on February 18, 2008. The issue of restitution of judges (reinstatement is a wrong notion as they are still judges) is in fact a question of constitutional survival of Pakistan. In parleys between leaders of coalition partners in London, Dubai, Karachi and elsewhere, the issue reportedly was to devise a “correct legal methodology” to counter the strategy of Musharraf camp to block the move through a stay order. It is not understandable why the political forces are not uniting to impeach the unconstitutionally-imposed President, rather than waiting for his purported further illegal actions.

Illegally removed judges, in fact, never ceased as judges. The question is not that of their reinstatement but ordering of status quo ante existing on November 2, 2007. The Parliament unquestionably and unambiguously under the Constitution has full authority to do so. Unfortunately, the Musharraf camp, with the connivance of certain elements, has managed to create confusion in this regard. Musharraf’s propaganda machine using certain quarters, including some members of legal fraternity, started a debate that in the presence of judgements, namely, Tika Iqbal Muhammad Khan v General Pervez Musharraf and 2 others (PLD 2008 Supreme Court 6) and Tika Iqbal Muhammad Khan v General Pervez Musharraf and others (PLD 2008 Supreme Court 178), it is not possible to restore the judges through passing of a resolution in the Parliament and/or an executive order. These quarters conveniently ignore the fact that these judgements are coram non judice, issued after seven-member bench declared action of November 3, 2007 illegal. These judgements also have no binding force as reached per incuriam in view of ratio decided by the apex court in PLD 1997 SC 351. 

 

On the one hand, it has been recorded that “Prime Minister apprised the President of the situation through the letter of 3rd November 2007″ for imposition of emergency, and on the other, order passed by the Chief of Army Staff is approved, which is self-contradictory. It has not been elaborated under what authority of law Chief of Army Staff imposed emergency on the advice of Prime Minister. It is held that judges “who have not been given, and who have not made, oath under the Oath of Office (Judges) Order, 2007, have ceased to hold their offices on the 3rd day of November, 2007.” Since the Oath of Office (Judges) Order, 2007 is void ab initio, any proceedings taken in pursuance of the same are nullity in the eye of law. No judge can be removed except through the method provided in Article 209 of the Constitution. 

 

Since the judgements of apex court, issued after seven-member bench declaring action of November 3, 2007, are untenable, the restitution of judges, deposed through a law violative of express provisions of the Constitution, poses no problem. The newly-elected parliament by refusing to validate Article 270AAA and passing an Act nullifying the judgement of Supreme Court can restitute the pre-November 3, 2007 judiciary.  The matter is of simple legal nature and should be solved through a legal procedure rather than entering into political polemics and undue controversies. This will not be the first time that the Parliament will nullify a judgement of apex court; it was done in the past by passing a law through simple majority. Numerous precedents are available to this effect, which Mr. Farooq H Naek certainly knows. The act of Parliament will restore the rule of law in its real sense in the country and all the deposed judges will be restituted without any interference on the part of executive. If done through an executive order, it will set as bad an example as one set by Musharraf on November 3, 2007. In future, any Chief of Army Staff or government can resort to such an illegality. 

 

There, however, is no need for any constitutional amendment, for which two-third majority is required, as propounded by Abdul Hafeez Pirzada, Rashid Quershi, Malik Qayyum, Waseem Sajjad, and Ahmad Raza Kasuri et al. The Supreme Court after restitution of pre-November 3, 2007 judiciary will certainly take cognizance of the matter suo moto or on the initiation of aggrieved party [which is public at large] to correct the mistakes committed by their learned colleagues. It will restore the rule of law in its real sense in the country.  All the judges [illegally removed] are still judges as action of November 3, 2007 was declared void ab initio by seven-member bench. The illegally removed judges must assume their offices immediately as soon as an Act is passed by the parliament nullifying the above-referred judgements. In fact, in terms of Article 190 of Constitution, all executive and judicial authorities throughout Pakistan are legally required to act in the aid of Supreme Court. The new government is duty-bound to implement the order of seven-member bench of apex court of November 3, 2007. 

 

However, the issue of ousting of judges, their house arrests, denying them right of free speech and movement and now hindrances in their restitution cannot be examined in isolation. This confirms that as a nation, even after 61 years of existence we have miserably failed to abide by rule of law. At the heart of the concept of democracy is the assurance for the citizens that their affairs are going to be managed by a ‘Responsible Government’ and rule of law will be ensured. If we analyse the Pakistani scenario in the light of the above basic principle, there will be utter disappointment and frustration. The conduct of each government after the death of Father of the Nation was to waste or plunder public money, force the people into international debt enslavement and mercilessly flout all rules and laws. Therefore, if we have failed to establish independent judiciary, true democracy or a responsible Government, it is not surprising. Dispensation of justice is the main pillar of democracy, which is not possible without ensuring independence of judiciary. 

 

Since the bizarre episode of March 9, 2007, there lurks a continuous struggle between the different organs of State to display their muscles and supremacy. Control of State with the barrel of gun cannot be matched by judicial activism.  People’s power alone can counter any unconstitutional or extra-constitutional move. Political leadership with the backing of masses can avert action like that taken on November 3, 2007. Courts are meant to interpret law, whereas enforcing the will of people and countering any despotic rule is always a political question that cannot be solved by the courts. Since our leadership has failed to establish rule of law, the entire society is now in the line of fire. All kinds of conflicts are surfacing for want of rule of law and accountability of those who transgress their limits.

 

The main cause of our present day pathetic socio-political and economic situation is existence of inefficient, corrupt, repressive and criminal institutions, which do not give a damn for the welfare of the common people. Successive governments’ policies of self-aggrandizement have reduced Pakistan to a state-in-perpetual-conflict. The worsening economic situation with poor law and order testify to the fact that progress and tranquility cannot be achieved by merely toeing the policies of aggressors and oppressors. Time has come for political parties to overcome their infightings and on national issue of constitutional revival, join hands against the anti-democratic forces. If Zardari wants to be remembered as a leader of masses, like Shaheed Benazir Bhutto, he should immediately sever all ties with the Musharraf Camp and restitute the illegally deposed judges. He should not forget that denying the establishment of a true democratic structure and independence of judiciary tantamount strengthening the hands of enemies of State. If he is advocate of “changing the system”, he should reconsider hidden (sic!) ties with the “power” if he wants to be remembered as a true representative of the people; or otherwise he will be adjudged by history in the same category as those who joined the King’s party under the banner of PML(Q).

 

Now that Ms. Nilofer Bakhtiar, member of Forward Block of PLM(Q), has filed resolution for restitution of judges in her personal capacity, the Parliament, irrespective of allegiance of individual members for their respective parties, must rise to the occasion—which is their historic challenge – to take the following steps for the restitution of illegally deposed judges, which also takes care of Mr. Zardari’s concern (sic) for “real change” and “truly independent judiciary”:

 

In its resolution, newly-elected parliament denounces all the acts taken on November 3, 2007 and resolves that for a true democratic and constitutional rule, a strong and independent judiciary is a sine qua non. Thereafter, the following bills should be tabled and passed:

 

¤ Bill for ‘High Treason Act 1973 (Amendment Act 2008): This Act amending High Treason Act, 1973 should provide that in case of violation of Article 6 of Constitution, it will be incumbent upon the apex court to take immediate cognizance and direct the Attorney General of Pakistan to initiate trial of offender. Thus in future, the apex court instead of validating any violation of Article 6 will be legally obliged to punish the offender(s). It will send clear message to imposer of emergency on November 3, 2007 to step down voluntarily or face trial for his admitted extra-constitutional acts.

 

¤ Bill for ‘Oath of Judges, Act, 2008′ (invalidating Oath of Office (Judges) Order 2007): By Passing this Act, the National Assembly will pave the way for reinstatement of November 2, 2007 Judiciary and nullify the judgements of apex court, namely, Tika Iqbal Muhammad Khan v General Pervez Musharraf and others (PLD 2008 Supreme Court 178) and Tika Iqbal Muhammad Khan v General Pervez Musharraf and 2 others (PLD 2008 Supreme Court 6). With the passing of this Act, in future no judge will be removed through any executive order or through any law related to oath of judges.

 

¤ Bill for National Reconciliation Act 2008 (NRA): In National Reconciliation Ordinance 2007, Musharraf intentionally excluded cases registered after 12 October 1999 for ulterior motives to exclude Nawaz Sharif and Shahbaz Sharif. In order to create a genuine atmosphere of national reconciliation and put an end to political victimization, this new Act should be passed immediately removing all the time-specific and person-specific provisions in NRO, 2007, which are in direct conflict with the Constitution, and extending its scope to all the persons affected.

 

The above measures will pave the way for a new beginning in this country ensuring the rule of law, constitutionalism, democracy and justice through an independent judiciary.

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The writers (ikram@huzaimaikram.com), tax advisers, legal historians and authors, are visiting Professors of Lahore University of Management Sciences (LUMS).

 

War & “development” in tribal areas

Huzaima Bukhari & Dr. Ikramul Haq

The situation in Federally Administrated Areas (FATA) and Provincially Administrated Areas (PATA) of Pakistan remains very explosive due to perpetual violence, arm conflicts and military operations. Historically, these areas have been harbinger of drug trade, but after 9/11 have emerged as the focal point of ‘war against terrorism’ (sic). Social and economic development of these areas has never given a serious thought by successive governments in Pakistan[1]. In the wake of 9/11, the Musharraf’s government on the insistence of USA and donor agencies started earmarking more resources for the social uplift of the tribal area[2], but no tangible results are still in offing for various reasons, the most important one is lack of acceptance and/or representation of local people in development planning and its implementation[3].

The newly-elected Prime Minister of Pakistan, Yousaf Raza Gilani, in an article published in Washington Post the other day, vowed to continue war against terrorism, but “in our own way”. “Our strategy against global terrorism, he wrote, “will be multifaceted”. Mr. Gilani resolved that “Pakistan will not negotiate with terrorists, but it will not refrain from talking to insurgent tribesmen whose withdrawal of support could help drain the swamp in which terrorists fester and grow. Yet, no talks will be held with anyone refusing to lay down arms”. He further elaborated: “Our policy aims to marginalise terrorists in the Federally Administered Tribal Areas and our North-West Frontier Province, where the rule of law had been abandoned and territory all but ceded to Al-Qaeda and the Taliban. Negotiations with the various tribes are being pursued with the help of the secular Pakhtoon nationalist Awami National Party, which has intimate knowledge of tribes and clans in the area and which, along with my Pakistan People’s Party, received the bulk of the votes of ethnic Pakhtoons in the Feb. 18 parliamentary elections”.

Pakistani Prime Minister argued that “erroneous comparisons” had been made between the new government policy and the failed deals reached with tribal militants along the Pakistan-Afghanistan border in 2004 and 2006. He elaborated that those agreements were signed after militant groups bruised Pakistan’s security forces in battle. “Now we are negotiating from a position of strength. Militants have been asked to surrender their weapons and unequivocally give up violence. We will not cut off our ability to use force or lower the vigilance we maintain to guard against violations of the peace agreements”, he added. “We intend to restore order and to give the people an option other than collaborating with murderers whose sole goal is chaos and anarchy. We will welcome our tribes back into society while respecting their conservative interpretations of Islam, as long as they give up violence and refuse to acquiesce to the intimidation of terrorists”, Mr. Gilani added.

Mr. Gilani, however, offered no explanation for the following bizarre events took place immediately after or little before his taking of oath of Prime Minister:

• The Taliban gained the upper hand in the fight against the Pakistani military in the settled districts of Swat and Shangla in the Northwest Frontier Province. While the Pakistan military claims to have killed up to 150 Taliban. The government sent a telling message to the Taliban by releasing Sufi Mohammed, the leader of a virulent segment of the Pakistani Taliban. Sufi Mohammed is leading figure of the most dangerous Taliban leaders in the Northwest Frontier Province as head of the outlawed Tehrik-e-Nifaz-e-Shariat-e-Mohammadi (TNSM – the Movement for the Implementation of Mohammad’s Sharia Law). He is said to have “close links with the administration of the Lal Masjid,” according to Sharif Virk, the chief of police for the Northwest Frontier Province as well as senior al Qaeda leaders.
• The TNSM is known as the “Pakistani Taliban” and is the group behind the ideological inspiration for the Afghan Taliban. The TNSM sent over 10,000 fighters into Afghanistan to fight US forces during Operation Enduring Freedom in October 2001. Sufi was jailed by the Paksitani government after the TNSM was banned.
• Time Magazine reported Sufi was released “in hopes that he can help calm the situation” in Swat and Shangla, the neighboring district the Taliban overran in the lase week of April, 2008. Sufi’s release was endorsed by General Ahmed Shuja Pasha, the Director General of military operations in the region. “Shuja calls it part of the ‘political effort’ needed to accompany the military campaign,” Time reported. “Brute use of force alone would only take us backwards,” said Shuja.
• Sirajuddin, the Taliban spokesman for Maulana Fazlullah, the Swat leader of the TNSM and Sufi’s son-in-law, stressed the importance of Sufi to the Taliban. “He is our leader and very dear to all of us, but our struggle for the implementation of a true Islamic system will not be affected,” said Sirajuddin. “Maulana Sufi is demanding the same. It is good that the government has released him; now it should start work on the implementation of Sharia.”
• The release of Sufi is a clear sign the Pakistani government and the military are prepared to cut a deal with the Taliban in Swat and Shangla. The formation of a “peace jirga” is another. On November 18, Dawn reported local tribal leaders and members of the political parties have formed a peace jirga to end the fighting in Swat.
• A jirga of elders and political leaders requested both the sides to cease fire.It urged the government to start talks with the militants. The participants said the government should implement the Shariat Act and Nizam-i-Adal regulations. The jirga convened by Syed Akber Shah Lala, cousin of provincial caretaker minister Mohammad Ali Shah Lala, was attended by former MNAs [Ministers of the National Assembly] and leaders of political parties.”
• The Pakistani military continues to tout high body counts in Swat and Shangla as evidence it is succeeding in the districts. Major General Waheed Arshad claimed over 150 Taliban have been killed since fighting began in Swat. “Our offensive against militants has been continuing said Arshad.
• The Taliban disputes the casualties cited by the Pakistani military. In an interview with Time, Sirajuddin said the numbers are “totally rubbish. Only ten of our jihadis have been killed.” In the past, the Pakistani military has inflated Taliban casualties while understating its own.
• The military said it had mobilized 15,000 troops for a major offensive in Swat. But these troops were yet to be used in Swat, where air and artillery are primarily being used. “In Shangla we are using ground troops, and (elsewhere) in Swat we are using artillery and helicopter gunships,” said Arshad.
• Baitullah Mehsud pulled out of peace talks after tribal leaders said the Army would not withdraw from South Waziristan. The government may release Abdullah Aziz, the former leader of Islamabad’s radical Red Mosque. The Taliban executed a “criminal” in Mohmand agency, where 12 Pakistanis were killed during battles between the Taliban and a tribe on April 27, 2008.
• Musharraf said foreigners, especially Uzbeks and Afghans with links to al Qaeda are hiding in Pakistan’s tribal areas. The US said it would pursue Osama bin Laden in Pakistan if it has evidence of his location. The Pakistani Army has signed a peace deal with Baitullah Mehsud in South Waziristan.
• The Movement for the Taliban in Pakistan, Baitullah Mehsud’s group, ordered the Mardan car bombing “in revenge.” Former Guantanamo Bay inmate Israrul Haq was rearrested while traveling to Mardan. Banned terror groups such as Jaish-e-Mohammad, Harkatul Mujahideen, and Hizbul Mujahideen are reforming in Karachi. Sufi Mohammed’s name has been removed from a murder case.
• The TNSM earlier reportedly agreed to renounce violence in exchange for the release of Sufi Mohammed. Prime Minister Gilani said the government would not be blackmailed or release jailed terrorist as preconditions to talks. The Taliban warned it would resume fighting if the government does not stop the military operations in the tribal areas. A court ordered property own by Baitullah Mehsud be seized for his role in the assassination of Benazir Bhutto.

The bizarre situation in these areas gained momentum when the US announced that it would limit attacks in Pakistan and provide $7 billion for counterterrorism operations as part of its new strategy with the new government. The Pakistani Taliban agreed to implement sharia law in Mohmand agency. The Movement of the Taliban in Pakistan said it would stop fighting the government if negotiations are successful. The Taliban also held a two-day conference in Mohmand Agency. Earlier, the NATO Secretary General Jaap de Hoop Scheffer said Pakistan is “part of the solution” to the problems in Afghanistan. The Ahmedzai Wazir tribes in South Waziristan said the only acceptable replacement for the Frontier Crimes Regulation laws is shariah. The Taliban insisted the Pakistani government give up support for the US as conditions for peace talks. The Taliban also said attacks in Afghanistan would continue despite any deal made with the government. The Awami National Party made formal contacts with the Taliban, who praised the new government’s plan to repeal the Frontier Crimes Regulation and conduct negotiations.

The above developments convey mix signals and the chances of a lasting peace in these areas still not in sight. The new governments in Islamabad and Peshawar are sincere to achieve truce with Pakistani Taliban leaders, but situation is as complex as it was a year back when on on 7 March 2007, during his farewell visit to historic city of Peshawar, the outgoing US Ambassador to Pakistan, Mr. Ryan C. Crocker, stressed “long-term commitment to security and development” in the North West Frontier Province (NWFP) and the FATA[4]. He failed to mention PATA which are equally important and sensitive. Mr. Crocker emphasized that the United States should forge “multi-faceted and enduring relations with Pakistan” and reassured, “we are strongly committed to helping the people of Pakistan in our mutual fight against terrorism”.

The present situation in tribal areas of Afghanistan and Pakistan is direct result of initiation of so-called “jihad” (holy war) by USA and its allies to dismember the erstwhile Marxist USSR, after the coming of Red Army in Afghanistan. The USSR at that time was perceived by the West as its worst enemy endangering their international political and economic interests. The tribal people were used as mercenaries in this war against Marxism and after achieving the goal were left alone to fight each other. The United State’s role in converting these areas into hub of drug trade and terrorism is well-documented and cannot be controverted any more[5].

Historically, arms and drugs played a pivotal role in US foreign policy to control the groups, regimes and promote relations with military dictators. It is, therefore, not surprising if FATA finds strategic place in achieving what the US calls victory in the war against terrorism (sic)[6].  As done through out its history, the USA is trying hard to control tribal insurgents in FATA and other areas by helping Pakistani regime of General Musharraf[7].

It is strange to note that USA even in the aftermath of results of general elections of February 18, 2008 is supporting Pervez Musharraf despite the well-established evidence that he has been promoting religious obscurantism and jihadists (so-called holy warriors but in reality war mercenaries). The episode of Lal Masjid in Islamabad testifies to this unholy alliance and must have been an eye-opener as everyone knows who has been sponsoring the so-called, self-styled custodian of faith and what role the intelligence agencies were playing to use such subversive elements. The issue was highlighted out of proportions by the Musharraf to convince the West that if support was not lent to him, the religious extremists led by Mullahs could capture the nuclear State that would have disastrous repercussions for the world! This is sheer blackmailing and nothing else. It shows the real design of military-mullah alliance in Pakistan. The rise of clergy in Pakistan was not possible without the support of army that took place during the Ziaul Haq regime under the direct knowledge of USA and its allies. Its perpetuation is now the need of the army as both can guarantee each other’s existence and use of muscle power.

One wonders if US policy makers are so naïve not to decipher the real motive behind the government policies, which even a common Pakistani can elucidate. The ordinary Pakistanis do not approve of the nefarious policies of Musharraf and are fully aware of the nexus between law enforcement agencies and certain religious groups e.g. people controlling Lal Masjid or those waging sectarian and tribal battles in FATA and PATA[8].

It is lamentable that our so-called religious leaders incite the people of Pakistan in general and tribes living in FATA in particular against USA, but when opportunity to enjoy “foreign money” for relief or development comes, they claim their entitlement as a matter of right[9].  This is hypocrisy in its worst form. There is an urgent need to develop FATA, PATA and all the underdeveloped areas of NWFP[10]. Factors like poverty, lack of education and dominance of Mullah are the root cause of “terrorism”. The unemployed and disillusioned are easy victims of recruitment onslaught by certain terrorist groups and Taliban.

These merchants of death use these innocent people for drug trafficking[11] and fighting in the name of jihad. One wonders how is it justifiable to use drug money for holy war. They are no waging any ‘jihad’ as claimed by them. In fact they are exploiting helpless, poor tribal people[12] for nefarious motives i.e. minting money from drug and arms trade. The ongoing war on terrorism is not between Islam and the West but between the forces of obscurantism and the oppressors. Policymakers in USA and the West are serving the interests of war industry. The war industry cannot survive without selling its products and hot spots are required by Bush administer USA to get huge funds from Congress. The opponents groups also need armament which they buy from drug money. In this way certain mafia inside USA and elsewhere make huge profits for trading arms for drugs.

The issues of exploitation of governments by the war industry and drug trade need to be tackled by international community on urgent basis. Conflicts like Palestine, Iraq, Kashmir, Chechnya are to be resolved along with development of areas like FATA, PATA and NWFP, if we want to win ‘war against terrorism’. Mr. Crocker after serving in Pakistan is now performing duties as Ambassador in crisis-ridden Iraq. Having first hand knowledge of realities in tribal areas of Afghanistan and Pakistan, he can convince Dick and Bush to leave Iraq as quickly as possible, otherwise entire region will destabilize having negative impacts for entire world in general and the Muslim world in particular. In such an eventuality the sensitive areas like FATA, PATA and NWFP will turn out to be more and more attractive for US enemies.

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Huzaima Bukhari & Dr. Ikramul Haq (www.huzaimaikram.com) are authors of many articles and books on foreign policy, money laundering operations, tax frauds, narco-terrorism and socio economic problems concerning our present day international society.

 

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[1] FATA covers a total area of 27,220 sq km with a population of 3.1 million living in seven agencies and six Frontier Regions. Since 2001 after becoming ally of USA, Musharraf has been claiming that efforts are underway to bring the tribal area at par with rest of the country. However, so far no significant achievement has been witnessed towards this end. The FATA literacy ratio is hardly 17 per cent (against the nation’s 45 per cent) which include 29.51 per cent for males and just three per cent for females.

 

[2] A nine-year uplift plan for the Federally Administered Tribal Area (FATA), estimated to cost $2.6 billion, was unveiled at a donors conference held on April 12, 2007 in Peshawar. Representatives of different agencies, UN bodies, humanitarian organisations and diplomats attended. According to Arbab Muhammad Arif, Secretary Security (FATA), the idea behind the programme is the creation of a peaceful and equitable society in the tribal belt in order to curb militancy.

 

[3] Lack of capacity of the implementing agencies is a major constraint in FATA’s development. At the Agency level, the government has set up planning and finance departments, but they do not function properly because of the absence of an effective financial management system. Lack of coordination between various departments and the donor agencies also cause duplication of work and leads to financial wastage and administrative failures. Similarly, the community participation approach needs to be introduced in FATA. In recent past, the government tried to undermine the role of Maliks in project selection and making the process more participative by involving the Agency Counsellors, majority of whom are selected by the Political Administration. At the policy formulation level, the Counsellors are authorised to select and recommend the execution of development plans, but in reality no heed is paid to their recommendations. The planners believe that without putting in place an institutionalised mechanism for project selection, designing and implementation, sustainable development in FATA would not be possible.

 

[4] These are controlled by the provincial government of NWFP which is led by a coalition of religious parties known as Muthida Majlis Amal (MMA). The role of MMA as ally of General Musharraf in consolidating his rule is well-known. Though MMA keep on opposing (verbally) the pro-USA policies of General Musharraf, but in Balochistan, which is the largest province of Pakistan in terms of area, it made a coalition government with ruling King’s party, PML (Q). The independent analysts believe that Mullah-military alliance is still very strong and MMA was nothing but a tool in the hands of army to exert pressure on the West to ensure perpetual support for an undemocratic rule.

 

[5] See Pakistan: Drug-trade to Debt-trap (http://66.201.122.226/weekly/books/archive/031109/books9.htm )

 

[6] In his farewell interview with the editorial team of US Embassy’s Monthly Khabr-o-Nazar (March 2007), Mr. Crocker said: “I am leaving with a sense of sadness that I am not going to be able to remain longer here, but with a very good sense about where we are going in this relationship. I have enormous confidence in the future of this country, the capacities and the intentions of its people. Pakistan in the years to come is going to be a regional leader, and we look forward to being a partner, as the full resources and capacities of this country continue to be developed, and a partner as a world leader with again an absolutely vital regional state and a good friend and ally.”

 

[7] The US Ambassador, Mr. Crocker, in his farewell interview revealed a number of steps were taken up by the US government in the wake of declaration of ‘war on terrorism’ to make Pakistan strong, which included: (1) military assistance that marked the arrival of Cobra helicopters to support “Pakistan’s efforts in War on Terror”, (2) Supplies to the Pakistan Navy, (3) F-16 sale , two F-16s have already arrived in Pakistan and (4) three billion dollars aid over five years, split evenly between economic and security.

 

[8] US Ambassador admitted the fact in his interview that ordinary Pakistanis are very enlightened and hospitable towards foreigners contrary to their negative projection in Western media. He said: “I found Pakistan and Pakistanis to be enormously welcoming and hospitable people. I find it noteworthy that during my two-and-a-half years here that, while clearly there are many Pakistanis who have been unhappy over various aspects of U.S. policy in the region, my American staff consistently report the same thing that I have seen for myself. Individualized anti-Americanism virtually does not exist here. When Americans, either from this embassy or the community, are out in the streets, the markets around the city, in the country, they encounter nothing but hospitality and generosity, and I think it is quite extraordinary. It is the same thing I remember from my first trip to Pakistan, which was as a university student in 1970 – hitch-hiking from Peshawar to Wahgah. That Pakistan part of the trip stood out to me just because people were so very nice, and the people I was dealing with then did not have very much of their own but they were always wanting to share it. So, again, what struck me most during this period (in Pakistan) was the hospitality, courtesy and generosity.”

 

[9] It is a pity, but irrefutable fact, that so-called Muslim Ummah, especially the oil-rich countries, failed to commit or fulfill promised donation for the earthquake relief. On the contrary, the government of USA (the policies of which are strongly criticized by Muslim people) showed great generosity in helping the affectees of the disastrous earthquake in Kashmir.

 

[10] It is not merely lost economic revenue or local law and order that concerns Pakistani government officials. Many experts and officials believe that the FATA is being used as a staging area for militant activity, some of it directed against coalition forces in neighboring Afghanistan and some against the Pakistani government. This worry has grown more acute in the wake of several assassination attempts against Pervez Musharraf. In light of the difficult to verify but nevertheless oft-stated presumption that Osama bin Laden and other senior members of Al Qaeda are hiding in the mountainous tribal areas of Pakistan, perhaps with the knowledge of local leaders, the government’s efforts to gain control over these areas have gained urgency.  Security was considered to be one of the reasons behind the Pakistan government’s decision to close all of the remaining refugee camps in the FATA.

[11] One of the reasons the drug and smugglers’ markets have been difficult for Islamabad to deal with is that they exist in the so-called Federally Administered Tribal Areas(FATA), where the central government’s writ is weak. Although each of the FATA’s seven agencies is ostensibly governed by a “political agent” appointed by the government in Islamabad, in practice the tribal areas are ruled by traditional Pashtun leaders, exercising a blend of personal decree, Islamic law (sharia), and traditional Pashtun legal practices known collectively as pushtunwali. Despite Islamic proscriptions against drugs and alcohol, the smugglers’ markets have been an important source of revenue for some FATA leaders, who continue to permit this operation.

 

[12] Indicators on health sector in FATA depicts a dismal picture, where for 2179 persons only one bed and for 6762 persons only one doctor is available. However, the security situation does not offer ideal environment for unhindered development. In most of the tribal agencies, skirmishes between militants and security forces and inter-tribal feuds are a routine affair. But the conflict may not go away easily if the tribal areas remain under-developed.

Restitution of judges: A case for constitutional survival

Huzaima Bukhari & Dr. Ikramul Haq

 

After lapse of mutually-agreed and self-imposed condition of 30 days on April 30, 2008 for the restitution of judges announced in Bhurban on March 9, 2008, Mian Nawaz Sharif declared yet another deadline for May 12, 2008, which Law Minister Farooq H. Naek says may not be “final”. This is an ugly joke with the entire nation. The matter has again been referred to a five-member committee to ponder, deliberate and present a draft. These tactics are deplorable and motivated to serve self-interest of certain quarters. The meeting of Law Minister with present Chief Justice in the wake of announcement by Nawaz Sharif in Lahore on May 2, 2008 speaks for itself.

 

Undoubtedly, the political leadership has once again shown the lack of commitment, especially on the part of majority party. Their leadership may have many pretexts, valid or invalid, for not following the deadline or deviating from the original declaration promising the restoration of status quo ante of November 2, 2007 without any conditionality. But the nation will never forgive them for their inactions, using delaying tactics and to retain the judges who supported the dictator on November 3, 2007 and others who joined his bandwagon thereafter. They are doing this for self-interest as Musharraf-picked judiciary will serve them better.

 

The long-drawn parleys between Nawaz Sharif and Asif Ali Zardari for implementation of Murree Declaration of March 9, 2008 on restitution of judges has serious undertones in determining whether 8-year-long dictatorial rule in Pakistan will end or not. The issue of restitution of judges (reinstatement is wrong notion as they are still judges) is in fact a question of great important vis-à-vis constitutional rule in Pakistan. In parleys between leaders of coalition partners in Karachi, Dubai and elsewhere, the issue reportedly was to devise a “correct legal methodology” to counter the strategy of Musharraf camp to block the move through a stay order. One wonder why the political forces are not uprooting the root-cause by impeaching the unconstitutionally-imposed President, rather than waiting for his purported further illegal actions.

 

Illegally removed judge, in fact, never ceased as judges. The question is not that of their reinstatement but ordering of status quo ante existing on November 2, 2007.  The Parliament unquestionably and unambiguously under the Constitution has full authority to do so. Unfortunately, the Musharraf camp, with the connivance of certain elements in judiciary and political parties, has managed to create confusion in this regard. The Musharraf’s propaganda machine using certain quarters, including some members of legal fraternity, started a debate that in the presence of judgements, namely, Tika Iqbal Muhammad Khan v General Pervez Musharraf and 2 others (PLD 2008 Supreme Court 6) and Tika Iqbal Muhammad Khan v General Pervez Musharraf and others (PLD 2008 Supreme Court 178), it is not possible to restore the judges through passing of a resolution in the Parliament and/or an executive order.

 

These quarters conveniently ignore the fact that these judgements are coram non judice, issued after seven-member bench declared action of November 3, 2007 illegal. These judgements also have no binding force as reached per incuriam in view of ratio decided by the apex court in PLD 1997 SC 351. On the one hand, it has been recorded that “Prime Minister apprised the President of the situation through the letter of 3^rd November 2007” for imposition of emergency, and on the other order passed by the Chief of Army Staff is approved, which is self-contradictory. It has not been elaborated under what authority of law Chief of Army Staff imposed emergency on the advice of Prime Minister. It is held that judges “who have not been given, and who have not made, oath under the Oath of Office (Judges) Order, 2007, have ceased to hold their offices on the 3^rd day of November, 2007.”  Since the Oath of Office (Judges) Order, 2007 is void ab initio, any proceedings taken in pursuance of the same are nullity in the eye of law. No judge can be removed except the method provided in Article 209 of the Constitution.

 

Since the judgements of apex court, issued after seven-member bench declaring action of November 3, 2007, are untenable, the restitution of judges, deposed through a law violative of express provisions of the Constitution, poses no problem. The newly-elected parliament by refusing to validate Article 270AAA and passing an Act nullifying the judgement of Supreme Court can restitute the pre-November 3, 2007 judiciary. The matter is of simple legal nature and should be solved through a legal procedure rather than entering into political polemics and undue controversies. This will not be the first time that the Parliament will nullify a judgement of apex court; it was done in the past by passing a law through simple majority. Numerous precedents are available to this effect, which Mr. Farooq H Naik certainly knows. The act of Parliament will restore the rule of law in its real sense in the country and all the deposed judges will be restituted without any interference on the part of executive. If done through an executive order, it will set as bad an example as by the Musharraf on November 3, 2007. In future, any Chief of Army Staff or government can resort to such an illegality.

There, however, is no need for any constitutional amendment, for which two-third majority is required, as propounded by Abdul Hafeez Pirzada, Rashid Quershi, Malik Qayyum, Waseem Sajjad, Khalid Ranjha, and Ahmad Raza Kasuri et al. The Supreme Court after restitution of pre-November 3, 2007 judiciary will certainly take cognizance of the matter suo moto or on the initiation of aggrieved party [which is public at large] to correct the mistakes committed by their learned colleagues. It will restore the rule of law in its real sense in the country. All the judges [illegally removed] are still judges as action of November 3, 2007 was declared void ab initio by seven-member bench. The illegally removed judges must assume their offices immediately an Act is passed by the parliament nullifying the above-referred judgements. In addition, in terms of Article 190 of Constitution, all executive and judicial authorities throughout Pakistan are legally required to act in the aid of Supreme Court. Thus, the new government is duty bound to implement the order of seven-member bench of apex court of November 3, 2007.

 

However, the issue of ousting of judges, their house arrests, denying them right of free speech and movement and now hindrances in their restitution cannot be examined in isolation. This confirms that as a nation even after 61 years of existence, we have miserably failed to abide by rule of law. At the heart of the concept of democracy is the assurance for the citizens that their affairs are going to be managed by a ‘Responsible Government’ and rule of law will be ensured. If we analyse the Pakistani scenario in the light of the above basic principle, there will be utter disappointment and frustration. The conduct of each government after the death of Father of the Nation was to waste or plunder public money, force the people into international debt enslavement and mercilessly flout all rules and laws. Therefore, if we have failed to establish independent judiciary, true democracy or a responsible Government, it is not surprising. Dispensation of justice is the main pillar of democracy, which is not possible without ensuring independence of judiciary.

 

The Parliament, irrespective of allegiance of individual members, must rise to the occasion—which is their historic challenge—to take the following steps for the restitution of illegally deposed judges, which also take care of Mr. Zardari’s concern (sic) for “real change” and “truly independent judiciary”:

 

In its resolution, newly-elected parliament denounces all the acts taken on November 3, 2007 and resolves that for a true democratic and constitutional rule, a strong and independent judiciary is a sine qua non. Thereafter, the following bills should be tabled and passed:

•  
  • Bill for ‘High Treason Act 1973 (Amendment Act 2008).

This Act amending High Treason Act, 1973 should provide that that in case of violation of Article 6 of Constitution, it will be incumbent upon the apex court to take immediate cognizance and direct the Attorney General of Pakistan to initiate trial of offender. Thus in future, the apex court instead of validating any violation of Article 6 will be legally obliged to punish the offender(s). It will send clear message to imposer of emergency on November 3, 2007 to step down voluntarily or face trial for his admitted extra-constitutional acts.

•  
  • Bill for ‘Oath of Judges, Act, 2008’ (invalidating Oath of Office (Judges) Order 2007).

By Passing this Act, the National Assembly will pave the way for reinstatement of November 2, 2007 Judiciary and nullify the judgements of apex court, namely, Tika Iqbal Muhammad Khan v General Pervez Musharraf and others (PLD 2008 Supreme Court 178) and Tika Iqbal Muhammad Khan v General Pervez Musharraf and 2 others (PLD 2008 Supreme Court 6). With the passing of this Act, in future no judge will be removed through any executive order or through any law related to oath of judges.

•  
  • Bill for National Reconciliation Act 2008 (NRA)

In National Reconciliation Ordinance 2007, Musharraf intentionally excluded cases registered after 12 October 1999 for ulterior motives to exclude Nawaz Sharif and Shahbaz Sharif. In order to create a genuine atmosphere of national reconciliation and put an end to political victimization, this new Act should be passed immediately removing all the time-specific and person-specific provisions in NRO, 2007, which are in direct conflict with Constitution, and extending its scope to all the persons affected.

 

The above measures will pave the way for a new beginning in this country ensuring the rule of law, constitutionalism, democracy and justice through an independent judiciary.

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The writers (ikram@huzaimaikram.com), tax advisers, legal historians and authors, are visiting Professors of Lahore