Category Archives: Democracy

Kashmir’s Instrument of Accession: Separating Myth from Reality

Syed Sharfuddin

This paper examines the chronology of accession of Kashmir with a view to finding answers about the timing and authenticity of the instrument of accession signed by the ruler of the State of Jammu & Kashmir on 26 October 1947, which is the date of accession according to official Indian account. Some scholars have refuted this stand and relied on the evidence that the Maharajah of Kashmir signed the instrument of accession after Indian troops landed in Srinagar on the morning of 27 October 1947. This leads to the question would such accession be valid in law if it were extracted through blackmail and duress.

On the eve of the partition, there were 565 officially recognised princely states in British India, which covered 40% of land and 23% population of the Colony. The Government of India Act 1935 had provided the establishment of an all India federation, subject to 50% of the princely states joining it to be effective. In the event, the princely states did not join and the federation never materialised.

Subsequently, in January 1946, provincial elections were held in British India to ascertain the wishes of the people in regard to the creation of the new successor dominions of India and Pakistan. Princely states did not take part in these elections.

The British government had introduced the concept of Paramountcy in the governance of princely states which established the authority of the ruler over his subjects. Princely states were excluded from the partition of British India. Their rulers were given the option to accede to the successor dominions of either India or Pakistan. Unlike the Government of India Act 1935, the option of claiming independence was not explicitly given to the princely states in 1947.

The Paramountcy principle ran contrary to the democratic principle of the 1946 provincial elections of British India. According to this principle, the ruler was supreme in deciding the fate of his state. Vallabhbhai Patel opposed this principle because he feared that after the British left India, the rulers of princely states would declare independence instead of joining the successor dominions. It is, however, ironic that while India benefited from the Paramountcy principle in Kashmir, it opposed its application in Junagadh and Hyderabad. In Kashmir, what suited India was the Paramountcy of the ruler but in the other two states India chose instead, the Paramountcy of “popular interests and welfare.”

This explains the motif behind India’s annexation of those princely states which opted to remain independent against the wishes of the Indian Viceroy Lord Mountbatten and Prime Minister Jawaharlal Nehru. The states, which were subsequently taken by India, were: Hyderabad (annexed in 1948 along with Junagadh), Pondicherry (1951), Goa, Daman & Diu (1961), Sikkim (1975) and occupied Jammu & Kashmir (2019). The only exception was Bhutan but to remain independent it had to surrender part of its sovereignty to India in the Indo-Bhutan Treaty of Friendship 1948.

In July 1947 the Indian States Department despatched a draft Standstill Agreement to all the rulers of princely states in India suggesting its finalisation at a conference to be held in Delhi on 25 July 1947. The Standstill Agreement provided for the continuation, for the time being, of all existing agreements and administrative arrangements in matters of common concern between the acceding state and the successor dominion. The Government of India made the acceptance of Standstill Agreement conditional on accession by the concerned states.

At the July 1947 meeting, which was chaired by the Viceroy, Lord Mountbatten, a proforma draft Instrument of Accession was also distributed and agreed by the rulers. Most rulers agreed to the Standstill Agreement. They also agreed to accede to the successor Indian dominion on 15 August 1947.

The Hyderabad police action, carried out on the direction of Sardar Vallabhbhai Patel with the knowledge of Nehru (II) resulted in the deaths of 40,000 Muslims.

The fighting in Kashmir cost an estimated 100,000 Muslims dead and refugees in the Jammu massacres and about 20,000 Hindus and Sikhs in the Mirpur massacres.

These numbers are far greater than the murder of 2000 Muslims in the Gujarat riots in 2002 and the earlier killings of 3000 Sikhs in the 1984 Delhi riots.

Maharajah Hari Singh’s State of Jammu & Kashmir was not a stable political entity. Long before partition, he had lost control of Gilgit Agency and Northern areas, which were leased out to the British from 1935 to 1947. Maharajah Hari Singh’s writ in Poonch, Bhimber and Mirpur was marred by popular dissent and hatred, caused due to his discriminatory treatment of his subjects, high taxes and humiliating treatment of the descendants of his grandfather’s family of Dhian Singh. His subjects in these areas did not consider Hari Singh as the “spiritual heir” to his predecessor Maharajah Pratap Singh who died issueless and without a son. Maharaja Hari Singh’s loyal subjects were concentrated in Kashmir, Jammu and Laddakh. In the Srinagar valley most of his subjects were Muslims who were supporters of either National Conference of Sheikh Abdullah or Muslim Conference of Chaudhry Ghulam Abbas.

Faced with these circumstances, the Maharajah needed time to decide the future of his state. In a telegram sent to the successor dominions of India and Pakistan on 12 August 1947, Prime Minister Ram Chandar Kak wrote: “Jammu & Kashmir Government would welcome Standstill Agreements with India/Pakistan on all matters on which these exist at present moment with outgoing British India Government. It is suggested that existing arrangements should continue pending settlement of details.” Pakistan agreed to sign the Standstill Agreement in the hope that the Maharajah will make the popular choice of acceding to Pakistan. India invited the Prime Minister to visit Delhi to negotiate the agreement. In October 1947, Maharajah Hari Singh replaced Ram Chandar Kak with Mehr Chand Mahajan. The Standstill Agreement was never signed by India.

There were two reasons which made Pakistan hopeful that the Maharajah, if he could not keep Kashmir as an independent state, might join Pakistan: the Maharajah distrusted Congress leaders, including Nehru and Patel and felt no Hindu affinity toward India because he was himself a non-practicing Hindu. He had also placed Sheikh Abdullah in jail. (VI). Hari Singh’s sole interest was to save his position and his state.

Indian historians have stated that Pakistan violated the Standstill Agreement by sending tribal militias to Kashmir, thereby provoking India to react in the manner it did on 27 October 1947. But in reality, Jinnah had no information about the tribal rebellion(VII).

What was happening in the State of Jammu & Kashmir following the partition of India was an internal struggle for power, which involved only Maharajah’s subjects. The governments of Pakistan was not involved. In fact Pakistan was so careful in maintaining its neutrality in Kashmir that when Major William Brown sent a cable to his commanding officer in Rawalpindi informing him that Gilgit had acceded to Pakistan, Col Iskandar Mirza wanted him disciplined for stepping out of his responsibilities as CO of Gilgit Scouts. How Gilgit and Baltistan got out of Kashmir is another story we will discuss on some other occasion. The Government of Pakistan also kept quiet on the requests of accession of Hunza and Nagar for weeks until Liaqat Ali Khan was told that if Pakistan did not accept their accession they would seriously consider joining Russia.

The command of the Indian and Pakistani army in the early days of the independence was in the hands of British military officers who were under strict orders from their Supreme Commander, Field Marshal Sir Claude Auchenleck not to commit their officers in any situation. The people in Poonch, Gilgit and the North West were outside the control of the Pakistan state.

When M A Jinnah leant about the Indian intervention, he made a radio broadcast on 28 October and declared that “the Government of Pakistan cannot recognise accession of Kashmir to India, achieved as it has been by fraud and violence”.

While things were deteriorating in Kashmir,

I have come across criticism that while things were deteriorating in Kashmir,Muslim League leaders in Pakistan made no effort to cultivate Sheikh Abdullah or the Maharajah. (VIII).  But it is a fact that Pakistan made attempts to engage with Maharajah Hari Singh over the question of accession. But his Prime Minister gave cold shoulder to the envoy of M A Jinnah, Major A S B Shah who visited Kashmir in October 1947 to negotiate the terms of Kashmir’s accession to Pakistan. Maharajah’s officials not only refused to give Major Shah a meeting with the Maharajah but also told him to get lost.

But India was busy sending wireless equipment, arms and ammunition to the Jammu & Kashmir State to bolster Maharaja’s fighting capacity. In September 1947 India also sent a military Adviser to Jammu & Kashmir State. He was a serving member of the Indian army. The new Prime Minister of Maharajah Hari Singh, Mehr Chand Mahajan was a friend of India. He was also a member of the Punjab Commission whose Chairman Sir Cyril Radcliffe connected Kashmir to the Indian Punjab by awarding Batala and Gurdaspur to India which according to the partition formula of June 1947, should have come to Pakistan. According to Professor Pervaiz Iqbal Cheema, Lord Mountbatten was concerned about India remaining in the Commonwealth after independence, and therefore he influenced Sir Cyril to provide India access to Kashmir through Punjab.

It is said that Maharajah Hari Singh would not have rushed to accede his State to India, had there been no large scale Muslim tribal invasion of his State from the west. This is only party true. The Maharajah had already made up his mind to join India and not Pakistan, unless he found a way out to remain independent. He was gradually losing control over his State so much so that by October 1947 he was sure Srinagar would fall, forcing him to flee to Jammu.

The Poonch uprising had its roots in the historical hatred of the locals toward the Maharajah. A similar uprising had taken place in Poonch in 1830 during the reign of his grandfather Gulab Singh. In the NWFP, the tribal Pathan advance toward Kashmir was in retaliation for the death of thousands of Kashmiri Muslims in Jammu at the hands of Dogra army on the eve of the partition.(IX)

Chronology of Accession

The chronology of the instrument of accession revolves around four days – from 24 to 27 October 1947.

24 October 1947

On 24 October Maharaja Hari Singh sent his Deputy Prime Minister R L Batra to Delhi to discuss his terms for conditional accession. On the same day, the tribals cleared many road blockades to continue their advance toward Srinagar. Hari Singh fled in panic to Jammu.

Lord Mountbatten felt that if Kashmir fell, a large tract of territory, which he thought ought to go to India would end up in the lap of Pakistan. Mountbatten did not like M A Jinnah and did not want him to appear victorious over Kashmir

25 October 1947

The next day, on 25 October 1947, Indian Defence Committee met and concluded that if nothing was done, Srinagar will fall to the rebels and Kashmir will be lost to Pakistan.

Lord Mountbatten felt that if Kashmir fell, a large tract of territory, which he thought ought to go to India would end up in the lap of Pakistan. Mountbatten did not like M A Jinnah and did not want him to appear victorious over Kashmir. Moreover, he did not want Nehru to be thrown to the hawks in the Congress such as Vallabhbhai Patel who had been saying all along that Kashmir should be taken by India in the same way as they took Hyderabad.

Nehru played his cards smartly. On 25 October he sent a telegram to Prime Minister Clement Attlee in London, highlighting the geo-political implications of a lost Kashmir for India, and by implication, for Britain and the Western world. The telegram read: “Kashmir’s northern frontiers … run in common with those of three countries – Afghanistan, the Soviet Union and China. The security of Kashmir … is vital to the security of India”. By referring to the great game politics of the region, Nehru ensured British acceptance of the military action India was going to take to stop the advance of Azad Kashmiri militia for liberating Kashmir. It also satisfied Mountbatten who was concerned about the safety of about 450 British subjects living in Kashmir.

On 25 October, Secretary V P Menon flew to Srinagar to meet the Maharaja and other Kashmiri Pandits such as D P Dhar and Dwarkanath Kachru. He returned to Delhi with Kashmir’s Prime Minister Mehr Singh Mahajan and a couple of Indian army and air force officers who had done their recce of the Valley to finalise Indian counterattack in Kashmir. Sheikh Abdullah also flew to Delhi and stayed at the residence of Jawaharlal Nehru.

All that was left now, was to get the Maharajah to sign the instrument of accession. His Prime Minister and Deputy Prime Minister were in Delhi to conduct negotiations.

In principle, Mountbatten did not want India to send troops in Kashmir without the signed letter of accession by the Maharajah. But the gravity of the situation forced him to approve Indian deployment prior to receiving the signed instrument.

26 October 1947

On 26 October 1947, several sets of negotiations took place in Delhi involving Sheikh Abdullah, Mehr Chand Mahajan, V P Menon, Lord Mountbatten, Jawaharlal Nehru and Baldev Singh, Minister of defence. The agenda of these meetings was India’s military action, future relationship between the State of Jammu & Kashmir and the Indian Union and relations between Hari Singh, Sheikh Abdullah and Mehr Chand Mahajan.

Mehr Chand Mahajan demanded from Nehru unconditional Indian military help. In return, Nehru wanted concessions from the Maharajah comprising a signed instrument of accession and Sheikh Abdullah becoming the Chief Minister of the State. Mahajan said if Indian army did not help, he would go to Lahore and seek help from Jinnah. The agreement did not take long to reach but it was subject to the approval of the Defence Committee.

The Maharajah who was in Jammu was unaware of the bargain his Prime Minister had made in seeking Indian military help in return for inclusion of the National Conference of Sheikh Abdullah in the governance of the State.

Later that day, the Indian Defence Committee met and received a report from V P Menon on the advance of the rebels. Menon reported that things were so bad that the rebels could reach Srinagar in the next 12 hours and there could be a bloodbath in the Valley involving Muslims and Hindus and Sikhs. Lord Mountbatten was extremely angry. He felt that Jinnah masterminded this advance to get Kashmir for Pakistan.(X)

In principle, Mountbatten did not want India to send troops in Kashmir without the signed letter of accession by the Maharajah. But the gravity of the situation forced him to approve Indian deployment prior to receiving the signed instrument.

Nehru asked Mehr Chand Mahajan and V P Menon to fly to Jammu and inform the Maharajah what had been agreed, and obtain his signature on the instrument of accession. Mahajan refused to leave until if was confirmed to him from his sources in Srinagar that Indian troops had landed in Kashmir. In his estimation, Mahajan had accomplished what Maharajah had instructed; get India’s help without the signature of the Maharajah on the instrument of accession.(XI)

In his memoirs, V P Menon claims that he travelled from Delhi to Jammu on 26 October and returned with the instrument of accession signed by Hari Singh. But according to another record, V P Menon told the British Deputy High Commissioner in Delhi on 26 October that he will fly to Jammu next day. From three other sources, namely, Nehru’s letter to Maharaja dated 27 October, Mehr Chand Mahajan’s autobiography and Maniben Patel’s memoirs it is confirmed that Menon did not arrive in Jammu before 27 October well after the start of the Indian military operation in Srinagar. (XII)

From these documents, it is clearly established that in the night of 26 October when arrangements were being finalised for Sikh soldiers to reach Srinagar by the break of dawn, there was no letter of accession in the custody of India. At a dinner with the English reporter of the Calcutta Statesman, Lord Mountbatten also confirmed that: “the Maharajah’s formal letter of accession was [still being] finalised”.(XIII)

According to Indian records, Hari Singh wrote a letter to Lord Mountbatten on 26 October 1947 with which the signed instrument of accession was attached. This was probably the letter V P Menon drafted for the Maharajah in Delhi on 26 October and got him to sign it on 27 October. Alastair Lamb finds it hard to believe that the Maharajah, having fled from Srinagar in a hurry and worried about his future, would have retained his wits to write such a letter himself on 26 October. The letter said: “it was my intention to set up an interim government and ask Sheikh Abdullah to carry out the responsibilities in this emergency with my Prime Minister”. Alastair Lamb questions as to how the Maharajah could have accepted Sheikh Abdullah, who he had imprisoned until a month ago, to be involved with the setting up of the interim government in Jammu & Kashmir. Lamb also points out that for many years the Government of India did not make public the signed instrument of accession, which was “attached” to Maharaja’s letter.(XIV)

It is possible that Mountbatten was aware that the instrument of accession and the cover letter which bore the date 26 October 1947 was eventually going to be signed by the Maharajah on 27 October, irrespective of whether it preceded or followed the Indian military deployment in Srinagar on the day. What was important for all sides at that time – India, Maharajah, Sheikh Abdullah and Mountbatten – was to save Srinagar before it was run over by the desperate bands of the Pathan tribes and soldiers of Major Khurshid Anwar and Colonel Akbar Khan.

27 October 1947

There are various Indian accounts about the signing of the instrument of accession on 27 October. Alastair lamb writes that the first Indian batch of Sikh soldiers landed in Srinagar at 9:00 am. According to one account, the Maharajah signed the instrument of accession before the Indian troops landed in Srinagar. Another account says the instrument was signed at “first light” on the morning of 27 October.(XV)

The India White Paper on Jammu & Kashmir says that on 25 October 1947 the Government of India directed the preparation of plans for sending troops to Kashmir but troops were sent on 27 October following the signing of the instrument of accession. (XVI)

Neither the proposal for  going to the UN nor holding a plebiscite in Kashmir came from Pakistan.

28 October 194

Lord Mountbatten could not envisage a truncated India, which depended on Pakistan for the source of its riparian waters. He went along with the false Indian narrative of “troops deployment following the accession” knowing that Pakistan could react in retaliation and a situation of an inter-dominion conflict could arise in the Commonwealth resulting in a major crisis, involving King George VI as Head of the Commonwealth. In fact when M A Jinnah leant about the Indian intervention, he made a radio broadcast on 28 October and declared that “the Government of Pakistan cannot recognise accession of Kashmir to India, achieved as it has been by fraud and violence”.

Jinnah proposed sending Pakistani soldiers to Kashmir, but he was prevented from doing so by Field Marshal Sir Claude Auchinleck. Auchinleck suggested that if Jinnah insisted on this course of action, he would ask General Gracey to withdraw all British officers from Pakistan armed forces.

On 28 October 1947, Lord Mountbatten replied to the Maharaja’s letter of 26 October 1947 which said: “it is my government’s wish that as soon as the law and order have been restored in Kashmir and her soil cleaned of the invaders, the question of the State’s accession should be settled by a reference to the people”.

Following Mountbatten’s suggestion, Prime Minister Clement Attlee wrote to Prime Minister Nehru on 30 October 1947 proposing a detailed plebiscite plan for Kashmir.

On 1 & 2 November 1947, Jinnah and Sheikh Abdullah accepted the plebiscite idea. Nehru also said that his government was committed to organising a plebiscite in Kashmir (XVII)

On two occasions, following the accession of Kashmir, Nehru avoided a direct contact with Jinnah in order not to commit himself to the mechanism and date of the plebiscite. (XVIII)

Part of the blame for the Kashmir tragedy goes also to the leaders of two main Kashmiri political parties. On the question of accession, there was no interaction between Sheikh Abdullah of National Congress and Chaudhary Ghulam Abbas of Muslim Congress.

The British government made 7 attempts to mediate in the Kashmir conflict but Nehru managed to stay away from any meaningful discussion on any proposal.

On 1 January 1948, India took the Kashmir issue to the UN Security Council appearing before the world body as the victim of aggression by Pakistan. The same policy seems to be directing India’s present foreign policy on Kashmir: to present itself to the international community as the victim of attacks by Pakistan based terrorists.

Conclusion

Accession of Kashmir to India was achieved by fraud and violence and, as such, was illegal and unacceptable. The letter of accession has never been made officially public by India. In 1971 it appeared in the printed letters of Vallabhbhai Patel in 1971. In 2016 an Indian researcher Venkatesh Nayak posted true images of the signed copy of the instrument of accession kept in the National Archives of India [https://thewire.in/history/public-first-time-jammu-kashmirs-instrument-accession-india/amp/].

Indian military action in Kashmir on 27 October 1947 preceded the signing of the instrument of accession which made its status in Kashmir one of occupying force. There is no information available until now about the conditionalities attached to Maharajah Hari Singh’s signed instrument of accession. The Maharajah signed the same proforma instrument, which other rulers signed when acceding to India. Therefore, it does not stand to reason why Kashmir was treated differently from Hyderabad or other former princely states? Was Sheik Abdullah bribed to accept accession in return for the special status of Kashmir provided in Articles 35A and 370 of the Indian Constitution which lasted 70 years. And if those statutory protections are now gone, doesn’t Kashmir get back falling in the same position as existed on 26 October 1947. These are questions arising out of India’s own record on Kashmir.

If the process of accession was complete in the case of Kashmir, as claimed by India, it is not understood why Lord Mountbatten, only a day after the Indian intervention in Kashmir called for the “question of accession to be settled by a reference to the people”. Prime Minister Clement Attlee also supported the plebiscite.

Part of the blame for the Kashmir tragedy goes also to the leaders of two main Kashmiri political parties. On the question of accession, there was no interaction between Sheikh Abdullah of National Congress and Chaudhary Ghulam Abbas of Muslim Congress. The lack of trust between them encouraged V. P. Menon to paint a grim picture of Srinagar and claim that it was sliding toward a civil war. This influenced Mountbatten to review his earlier stance that ‘accession should precede intervention’ in order to authorise the despatch of Indian troops to Srinagar on the morning of 27 October 1947 to avert a bloodbath of the civilians.

It should be realised that while going to the UN and calling for a plebiscite in Kashmir may keep the Kashmir dispute alive internationally, none of the two options is ever going to materialise.

Neither the idea of going to the UN nor holding a plebiscite in Kashmir came from Pakistan. However, while the initiators of these ideas (India and Britain) have abandoned their support for these options, Pakistan has strongly clung to them as possible solutions for the Kashmir problem. It should be realised that while going to the UN and calling for a plebiscite in Kashmir may keep the Kashmir dispute alive internationally, none of the two options is ever going to materialise. The UN will never be able to force India to accept international mediation on Kashmir. Similarly, there will never be a plebiscite in Kashmir because the preconditions for its conduct will remain controversial and never be met by either country fully.

A solution will need to be found in establishing Pakistan’s own historical, constitutional and political claim on Kashmir.

Historically, Pakistan should use the formula of partition, which took into account the principle of majority view when determining the accession of the princely states, notably in the case of Junagadh, Hyderabad and Kashmir. On the basis of this principle, Kashmir belongs to Pakistan and not India.

Constitutionally, Pakistan needs to amend the 1973 Constitution in regard to Kashmir and change Articles 1 and 257 by two third majority of the constituent assembly to establish its claim on Kashmir in law.

Politically, Pakistan should integrate Gilgit-Baltistan, Azad Kashmir and the Occupied Kashmir as the 5th, 6th & 7th provinces in the federation. The 7th province should be inducted when conditions are conducive for its inclusion in the federation of Pakistan.

Let me also make a reference to a sensitive subject, which no one wants to touch for the time being. It is the option of Independence for Kashmir. Lord Mountbatten and Prime Minister Jawaharlal Nehru were both opposed to the option of independence of princely states. The states, which did not join India on the eve of partition and instead opted for independence did not remain independent for long and were sooner or later annexed with India. Therefore the question of accession to be settled by a reference to the people of Kashmir, if it is ever allowed, will be to either to join with India or Pakistan. The third option does not exist in the context of the historical precedence of princely states.

London: 1 October 2019

About the author:  Mr Syed Sharfuddin is a former diplomat and a former Special Adviser in the Commonwealth Secretariat, London. He specialises in South Asian politics, conflict resolution and election observation.

Notes:

i. Alastair Lamb, Kashmir: Birth of a Tragedy 1947, Roxford Books, UK 1994; Andrew Whitehead, A Mission in Kashmir, Chapter 5, Penguin India, 2008; Mr Abdul Majid Zargar, Kashmir Accession Document Shrouded in False Myths, zargar271013.hm, www.countercurrents.org; Dr Abdul Ahad, Kashmir: Triumph and Tragedies, Chapter 23, Gulshan Books, India, 2012.
ii. According to the Sunderlal Committee’s report, which was not released until 2013, the number of Muslims who died during or after police action in Nizam’s State ranged between 27-40,000. According to another report, the number was 40,000. Pankaj Mishra, India at 70: The Passing of Another Allusion. New York Times, 11 August 2017.
iii. Christopher Snedden, Understanding Kashmir and Kashmiris, Oxford University Press, 2015.
iv. Das Gupta and Jyoti Bhusan, Kashmir and Kashmiris, Springer 2012.
v. Hari Singh’s love of western clothes and a liberal lifestyle was one of the reasons why Maharajah Pratap Singh, who was a devout Hindu, did not name Hari Singh (his nephew) as heir to the throne of Jammu & Kashmir. Instead, Maharajah Pratap Singh named Jagat Dev Singh from the Dhian Singh’s family line from his grandfather side as his “spiritual heir”. The British Indian States Department, however, overruled Pratap Singh’s Will and appointed Hari Singh as the Maharajah of Jammu & Kashmir, possibly because they could exploit his weaknesses about which they had ample information during his student period in London.
vi. Neither the Northern tribesmen nor the Gilgit Scouts were under Pakistan’s control, although, according to the Governor of NWFP, Sir George Cunningham, the officials of the Pakistan government were of two minds – either to turn a blind eye to the developments, or to express concern that this will precipitate the Maharajah to act in panic and join India.
vii. Safeer Ahmad Bhat, Jammu and Kashmir on the Eve of Partition- A Study of Political Conditions, South Asian Studies: Vol. 32, No. 2, July – December 2017, pp.285 – 295-
viii. Ibid
ix. Ian Stephens, Pakistan, London 1963.
x. M C Mahajan, Looking Back, London 1963.
xi. V P Menon, The Story of the Integration of Indian States, 1956.
xii. V P Menon, Ibid; LP&S/13/1845b,ff 283-95-India office records; M C Mahajan page 154, op cit; Nehru’s letter of 27 October to Maharajah Hari Singh, India office records; Ian Stephens, op cit; and Noorani-Frontline 24th March 1995.
xiii. An instrument of accession bearing the signatures of the Maharajah and Mountbatten was included in the collected correspondence of Sardar Patel. The text of instrument is the same as was approved for all princely states in the meeting of rulers on 25 July 1947. Sardar Patel’s Correspondence 1945-50 Vol I, Durgadas, New Light on Kashmir, Ahmedabad, 1971.
xiv. J Korbel, Danger in Kashmir, Princeton 1966.
xv. India White Paper on Jammu & Kashmir, New Delhi, 1948
xvi. The idea of plebiscite first came from Nehru on 30 September in the context of Junagadh whose Muslim leader had acceded to Pakistan.
xvii. Nehru did not accept Jinnah’s proposal to convene a special conference on Kashmir in Lahore on 29 May even though Mountbatten had agreed to it. Criticising Nehru, Sardar Patel said: “for the Indian PM to go crawling to Jinnah when we are the stronger side and in the right, would never be forgiven by the people of India.” Mountbatten tried again by joining the meeting with the meeting of the Defence Committee in Lahore on 1 November but Nehru again stayed away feigning this time, diplomatic illness. At this meeting, Mountbatten tried to assure Jinnah that the Maharajah had signed the letter of accession to India but His Majesty’s government wanted the people to decide the fate of the state through a plebiscite.

Also see:
https://www.countercurrents.org/zargar271013.htm
https://core.ac.uk/download/pdf/32578917.pdf
https://link.springer.com/chapter/10.1007/978-1-349-11556-3_10
https://www.academia.edu/385642/HISTORICIZING_PAKISTAN_S_KASHMIR_POLICY
https://thewire.in/history/public-first-time-jammu-kashmirs-instrument-accession-india

Post August 2019 Status of Jammu & Kashmir and Options for Pakistan

By Syed Sharfuddin*

Following the 5 August 2019 action by India withdrawing the special status of the Indian Held Kashmir granted under Article 370 of the Indian Constitution and declaring it as two Union Territories on 6 August 2019, there was a strong reaction in Kashmir, as well as in Pakistan but also a national consensus that despite the serious implications of India’s illegal action on the future of the disputed territory, Pakistan would not go to war with India on this action as a first option. The retaliatory but non-belligerent measures agreed by Pakistan’s National Security Committee under the Chairmanship of the Prime Minister on 7 August 2019 following an angry joint session of the Pakistan Parliament were as follows:

1. Downgrading diplomatic relations with India;
2. Suspending bilateral trade with India;
3. Reviewing bilateral arrangements with India
4. Matter to be taken to the UN, including the Security Council;
5. Pakistan Independence Day on 14 August to be observed in solidarity with the brave Kashmiris and their struggle for the right of self-determination;
6. 15 August which is India’s Independence Day to be observed as a Black Day in Pakistan.

In addition to these measures, the Prime Minister of Pakistan also directed that:

1. All diplomatic channels be activated to expose the brutal Indian racist regime’s design and human rights violations;
2. Pakistan Armed Forces to continue vigilance;
3. The Special Parliamentary Committee on Kashmir to remain seized with the issue.

The measures did not include Pakistan closing its airspace for all international civilian and cargo traffic bound to/from India. The airspace was opened on 15 July after it remained closed since 26 February following India’s failed airstrike in Balakot. The Kartarpur Corridor for Sikh pilgrims was also not affected by these measures.

The problem with these measures is that these have a short shelf life and will soon be forgotten. In a couple of months the world will get tired of news about Kashmir and move on to discuss other problems. This changed status-quo of the IHK would become the new norm in India-Pakistan relations. Having lost the IHK to India forever, Pakistan will start hearing bolder and more aggressive Indian claims on Azad Kashmir and Gilgit-Baltistan.

On social media, a number of other suggestions were circulating. These suggested that following India’s action, the Line of Control had ceased to exist and the border between India and Pakistan had reverted back to the old ceasefire line. It was suggested that Pakistan should unilaterally abrogate the 1972 Simla Accord and deny India the opportunity to take the position that India-Pakistan disputes cannot be taken to the UN and should be discussed bilaterally between the two countries.

A more daring suggestion was that Azad Kashmir government should unilaterally declare independence in consultation with Pakistan on behalf of the entire State of Jammu and Kashmir as it existed at the time of the Partition in 1947. Following this move, Azad Kashmir should apply for membership of the UN and the OIC, supported by Pakistan and other countries such as Turkey, Malaysia and Saudi Arabia. The social media posts went on to say that the Muslim leadership of IHK, including Hurriyat Conference leadership was deeply concerned about its future and would readily support cessation from India. At the international level, the nature of an inter-state dispute involving two countries would change from a bilateral matter to that of self-rule for the Kashmiris, forcing the UN Security Council to intervene. A new independent State of Azad J&K can sign a defence pact with Pakistan to defend it against any Indian aggression.

These suggestions hardly make any difference to the shifting status quo in Kashmir. The problem with abrogating the Simla Accord is that at least it provides a fig leaf for considering the disputed Kashmir issue bilaterally, especially in the absence of any new international mediation or peace initiative on Kashmir. The BJP Government in India will be only too happy to bin a Congress-negotiated agreement and abandon this platform for holding a dialogue with Pakistan on Kashmir. Secondly, Azad Kashmir declaring full independence will mean giving encouragement to separatists elsewhere in Pakistan. The suggestion is also unworkable globally. The Turkish Republic of Northern Cyprus, Western Sahara and Kosovo have been standing in the queue for international recognition for a long time and not succeeded. More recently, Barcelona declared independence after a referendum but its declaration was shot down by the EU. It won’t happen at all in the case of Azad Kashmir.

But thinking loud and out of the box is good because conventional approaches have not forced India to sit with Pakistan to resolve the Kashmir dispute. These have got Pakistan nowhere in the past 7 decades and are unlikely to improve the situation in the future except bring grief and more coffins.

A rather unconventional but democratic and non-Jihadi option, which might strengthen Pakistan’s claim on Kashmir in the long run is to bring Kashmiri leadership and people from all parts of Kashmir to met in a Grand Congress in the UK. In exercise of their political will in lieu of the long denied plebiscite, they should pass a people’s resolution overturning the Maharajah’s arbitrary and unfair accession to India with their democratic and popular accession to Pakistan. Following this, the Azad Kashmir Assembly should meet and pass a similar resolution and give Pakistan a clear mandate to claim the entire State of Jammu and Kashmir through a constitutional amendment in the 1973 Constitution, defining its status as the 6th province of Pakistan in Article 257 and showing its territorial boundaries as existed at the time of partition in 1947 in Article 1.

It may be recalled that in its ruling of 17 January 2019 on the granting of fundamental rights to the people of Gilgit-Baltistan, including the right to self governance, the Supreme Court of Pakistan did not allow the federal government to grant a provisional provincial status to Gilgit-Baltistan, pending a final settlement of the Kashmir dispute. It only allowed the government to  promulgate an Ordinance which was duly vetted by the Court. The Court was concerned that nothing in its judgement should affect the disputed nature and status of Kashmir.

India’s unilateral annexation of IHK may be used by Pakistan to invoke the well known international principle of rebus sic stantibus related to fundamental change of circumstances and claim the disputed state of Kashmir as Pakistan’s territory. This principle allows states to withdraw concessions or commitments made prior to the fundamental change of circumstances. Recently, President Trump has withdrawn from a nuclear agreement with Iran to which US was a state party along with Iran and the EU.

Using this principle, the federal government can also approach the Supreme Court of Pakistan to review its January 2019 ruling in regard to Gilgit-Baltistan becoming the 5th province of Pakistan on the basis that by its action of 5 August 2019, India has disregarded all norms of international law and UN resolutions concerning settlement of bilateral disputes, thereby freeing Pakistan of its obligations to regard Gilgit-Baltistan as a disputed territory.

There is a possibility, even though unlikely, that India’s Supreme Court might strike down the action of BJP government on the annexation of Jammu and Kashmir and find the process ultra vires, including the Jammu & Kashmir Reorganisation Act, which goes against the spirit of Article 370, if it is restored by the Court in India. However, it should not prevent Pakistan from going as far as India has already gone in its constitution in claiming the state of Jammu and Kashmir to give parity to its claim.  India’s claim was incorporated in the Indian constitution as early as 1949 following the alleged instrument of accession by the Maharajah of Kashmir which was challenged by the tribal people of Jammu and Kashmir, including Northern Areas, as well as Pakistan.

This is a democratic and constitutional solution, away from violence and agitation of the last 7 decades, but it will require patience and hard work to reach fruition. This is also the path, which the country’s founding father, Quaid-e-Azam Mohammad Ali Jinnah would have taken, if he were alive today.

For details of this recommendation, also see India’s Illegal Annexation of Kashmir Opens New Opportunities for Pakistan

London 9 August 2019

*Mr Syed Sharfuddin is a former diplomat and a former Special Adviser for Asia in the Political Affairs Division of Commonwealth Secretariat London (2000-2006).

Okey, We Bought Imran Khan’s Dream last July but What’s Next!


By Syed Sharfuddin

Last July I was packing my bags and tidying up my papers to fly to Pakistan. The assignment was to accompany the Commonwealth Observer Group for the 2018 General Election as an independent Political Consultant. While in Pakistan I observed that the dream PTI leader Imran Khan sold to the public for a Naya Pakistan had made deep impact on the mindset and imagination of the middle class, especially women and young persons and those entering the job market. PTI was winning and the electoral campaign said so clearly. Imran Khan had his critics too, most of whom belonged to powerful feudal dynastic families in Sindh and Punjab. They feared for the loss of their own power and privileges in the political Tsunami that was overtaking the length and breadth of the country. The second and third tier of rival politicians who were considered electable in their constituencies, jumped ship and joined PTI. Some of them even got tickets to contest election from PTI platform and some who were not that lucky stood as independents.

I also noticed that the military, which was not interested in manipulating the elections or changing the results of the ballot on the night of the count, and the judiciary which found itself unwillingly caught between the devil and the deep sea with high profiled corruption cases, were both covertly pleased that finally Pakistan was going to take a breath of fresh air with the victory of PTI. The opposition’s allegations of military rigging the election under the pretext of providing security cover were eventually proved false.

The road to PTI victory was not smooth. Coming very lose to election date, and often incomplete, judicial verdicts on the corruption cases of the outgoing Prime Minister Nawaz Sharif and his family members and a covert externally-funded global cyber campaign to link the Pakistan military with PTI’s campaign had soured the electoral atmosphere and divided the media which fuelled controversies and conspiracy theories in the traditional fashion of singing the tune of whoever gave them political advertisements and stuffed their pockets, euphemistically called lifafas. Pakistani social media also contributed to this senseless blitz without realising the damage they were doing to the reputation of the country. In this unfortunate discourse Imran Khan unwittingly painted Pakistan as a corrupt and misgoverned country. In the first few months of his Prime Ministership he continued to harp on this narrative in his meetings with foreign dignitaries and overseas investors, little realising that the image that went out to them was of a country they should not trust and stay away from by a barge pole.

Not only the campaign was bitter and conveyed the impression of absence of level playing field, in the night of the poll count the disappointing performance of the results management system which was jointly built by NADRA and ECP, left a bad taste in the mouth regarding Pakistani politicians who remained true to the reputation of not conceding their electoral defeat gracefully.

Following the elections, PTI emerged as the largest party in the National Assembly but it could not secure outright majority in the House, which was another proof that the elections were not rigged. The talk of selected Prime Minister therefore appears both irresponsible and undemocratic indicating lack of faith in the political process which is the result of a parliamentary consensus by politicians themselves. In the provinces, PTI won Punjab and KPK but needed coalition partners in Sindh and Baluchistan to form majority governments.

Since coming to power last year, the government of Prime Minister Imran Khan has discovered that governing a country like Pakistan is no mean task. It has also learnt the importance of doing thorough homework before making any political promises because it is only after being in government that a leader comes to appreciate the true state of affairs and the pressures that decide the common denominator in taking national decisions. A perfect example of this is the electoral promise of PTI that it will not go to the IMF for emergency financing, or the claim that the looted money which was illegally sent abroad by corrupt politicians will be repatriated to Pakistan with the help of friendly countries and the international anti-money laundering bodies.

In the last 12 months in which two and a half budgets were given by the government, including the one just passed in the National Assembly, revenue collection has been less than forecasted, inflation is rampant and foreign debt is higher than ever in the history of the country. Despite large injections of cash Dollars amounting to 9 billion, 3 billion each from Saudi Arabia, China and the UAE, the foreign exchange reserves of the country have not been able to prevent the steep fall of the Pakistani Rupee vis-a-vis the US Dollar. The recently signed IMF agreement has come with tough conditionalities calling for radical restructuring of the economy, an overhaul of the revenue collecting apparatus, expansion of income-tax base and putting an end to government subsidies on utilities and food items designed to be poor friendly. The restructuring is taking a toll on the ordinary public, as well as the business sector which has been hit hard by low investments, high import tariffs and a bearish stock market behaviour. Manufacturing has suffered due to high costs of production and utilities, rising interest rates, cuts on export credits, low export yields and disappointing results in the exploration of oil and gas reserves in the country’s potentially promising subterranin fields. Many from the middle class and the poor who expected a quick change in their circumstances are disenchanted and think they made a mistake voting for PTI. The opposition is also not quiet. It keeps flogging the government for every word they say and every bill they bring to parliament to debate and enact.

In this situation, the  military has found a firm place for itself in the major decision-making institutions of the country by becoming members of the country’s key economic bodies, the National Development Council and Economic Advisory Committee. The military is also represented or has visible presence in the National Security Council, National Counter Terrorism Authority, National Disaster Management Authority, Civil Aviation Authority and Airport Security Force which is quite understandable given the security and defence challenges Pakistan faces internally, as well as on its external borders. But while their representation in civilian and political institutions may be good-intentioned and tactically helpful, in the broader context of democratic governance it is an overkill. The reason is because the military enjoys the status of a neutral, non-partisan and credible institution which could act like an A&E call to 911 when needed by civilian government. The military should always stay invisible in the background as a final deterrent to caution inept politicians, and in times of crisis call on them to put things right or else face a mid-term election. The military’s formal institutional presence in the political decision making forums of the country undermines their role as a neutral arbiter and as an insurance policy against disaster.

A number of Pakistanis think that the military is actually running the country from the shoulder of Imran Khan who is Prime Minister only in name. They point to the present harmony in the civil-political relations not as a sign of stability but as the capitulation of civilian authority by the military. These people draw their inspiration from liberal civil society, anti-military and anti-Islam lobbies and friends of India and the Sharifs, some at home (muted) and many overseas (vocal). Irrespective of their intentions, their argument holds ground to the extent that while the military is excellent as a rescuer in a disaster situation, it is unhelpful in governing the country by proxy and taking decisions which dominate, if not bypass, national and provincial political processes in a federation. The hybrid semi democratic rules of Generals Ayub, Zia and Musharraf are seen by many as democracy’s dark periods, each of which kicked Pakistan back into the past instead of leading it to the future.

In many ways Pakistan is today re-living the political history of Bangladesh in the years 2006-2008 during which an extended interim government, covertly supported by the Bangladesh military, cleaned up the mess left by the government of outgoing Prime Minister Begum Khaleda Zia and paved the way for Awami League to win the December 2008 election and form a government in January 2009. The example of Bangladesh may not be perfect because in Pakistan the interim government lasted only over 2 months and not 2 years. It took office on 1 June 2018 and resigned on 18 August 2018 when Imran Khan was sworn in as Prime Minister. But the fact remains that in the present Pakistan government, which is the third democratic civilian government since General Musharraf gave up power, a press release from DG ISPR carries more weight than a press release from the Ministry of Information or the Prime Minister’s Office. There is no country in South Asia other than Pakistan where the military leadership is given more space in the country’s electronic and print media for news, photos and statements. Even foreign envoys and visiting overseas dignitaries find it necessary to pay a courtesy call on the COAS after calling on the PM or FM. The powerful religious lobby ‘bows’ to no one except the military. DG ISPR’s Twitter account which comments on developments ranging from sports events to development projects, which are purely civilian matters, is run in parallel with the Tweets of some of the more energetic and media-savvy Ministers of the present Cabinet whose job is to keep PTI in the public eye. At least in Bangladesh, after the initial hiccups, the government of Sheikh Hasina took full control of the political process from the military and cleaned up corruption and graft using the parliament and judicial institutions, leading to political stability, investor confidence, rapid economic growth and elimination of extremist voices. Could Pakistan do the same using its elected political capital with precision and come out clean from the muddy waters?

But Pakistan is not Bangladesh. It has its own security threats, political processes and developmental paradigm. It has its friends and its enemies. In a nutshell, Pakistan is personified by its national cricket team which is capable of touching the zenith of success in one match and in another match falling to the ground like a busted missile which is going nowhere. Interestingly, this unpredictability gives Pakistan a unique advantage. Neither its public nor the international players who are interested in this country can completely write off the present government, or the country for that matter, nor can they embrace it fully until the results are final.

It is fair to say that having completed one year out of the mandated five years in its electoral term, it is too soon to judge any government’s performance, let alone that of the PTI government in Pakistan. Therefore the dreamers will have to go on dreaming for at least another couple of years to see whether the austerity measure and resulting economic reforms are working for the country, and whether a Naya Pakistan is finally coming to take shape. While the critics of PTI may continue to boo the government for its shortfalls or gaffes, and while the supporters of this government may continue to applaud every step it takes for better or worse, Prime Minister Imran Khan and his government must be given space and time to do the right things this country needs. After all, Pakistan is only 72 years old in the journey of a thousand years.

7 July 2019.

Background Note:
1. On 28 July 2017, the Pakistan Supreme Court while ruling on the petitions of PTI Chairman Imran Khan, MNA Sheikh Rashid Ahmed and other political leaders, disqualified ex-Prime Minister Nawaz Sharif from politics and directed NAB to file three references — Avenfield Properties, Al-Azizia and Flagship Investment — against Nawaz Sharif and other members of his family in the NAB accountability court. 2. On 6 July 2018, an Accountability court of Judge Mohammad Bashir convicted ex-Prime Minister Nawaz Sharif in the Avenfield Properties reference and sentenced him to 10 years in prison. 3. On 24 December 2018 another Accountability court of Judge Mohammad Arshad Malik convicted Nawaz Sharif in the Al-Azizia reference and awarded him 7 years’ imprisonment, besides imposing fines of Rs1.5 billion and $25 million on the former PML-N leader. 4. In January 2019 the Ex PM’s  legal team filed an appeal, as well as a petition against the decision in the Al Azizia steel mills case. 5. In July 2019 the family of PML(N) which includes the top leadership of the party alleged that the Accountability Court’s Judge Arshad Malik was blackmailed to give a verdict against the ex-Prime Minister under duress. They produced a video clip and an audio recording in support of this allegation. The allegations were refuted by Judge Arshad Malik as false, and based on doctored evidence.

Mr Syed Sharfuddin is a political analyst and a former Pakistani diplomat. He was Special Adviser in the Political Affairs of Commonwealth Secretariat in London from 2000 to 2006, and CEO of Muslim Aid UK from 2010 to 2014.

Yemen Crisis: Who is Involved

Old SanaaMany observers are seeing the ongoing Yemen civil war as a shrewd attempt by Iran to come close to Saudi Arabia’s borders through proxy. They also see the largely GCC-supported military ‘Operation Decisive Storm’ led by Saudi Arabia as an attempt to maintain the power status quo in the region and avoid an AQ & IS advance in Yemen to confront the Shiite-led movement Ansurallah (Houthi). There may be some truth to that analysis but it is not the whole truth. Yemen was ruled by an autocratic President Ali Abdullah Saleh for 33 years who had his own problems with the Houthis. When Ali Abdullah Saleh left power after the ripples of the now extinct Arab Spring reached the shores of Bab El Mandab, the country faced a power vacuum as is often the case with the collapse of authoritarian regimes. Political negotiations which followed Saleh’s departure to write a constitution acceptable to the major stakeholders remained inconclusive. The last straw was the collapse of the National Dialogue Conference initiated in 2013 to work out constitutional arrangements for a government of national unity.

The Houthi movement takes its name from Hussein Badreddin al-Houthi, who launched an uprising in Yemen in 2004. Its present leader is Abdul-Malik al-Houthi. Last September the Houthis captured Sanaa and toppled the widely unpopular transitional government of President Abed Rabbo Mansour Hadi. The peace agreement that was signed for working out a formula for sharing power acceptable to all sides did not hold and fighting broke out in January 2015 resulting in the current civil war.
In the domestic theatre of current fighting, one side is made up of the militias, mostly Sunnis and from the south of Yemen, who are supporting President Hadi who has fled to Saudi Arabia. Fighting against them are most of the Zaydi tribes from the north of Yemen, including the Houthis who are in alliance with Ali Abdullah Saleh and his political party. The Houthi-Saleh coalition is an alliance of convenience. The Houthis have access to vast amounts of weapons, warplanes and firearms purchased during the time of Saleh’s rule. They are also assisted by former military advisers who oppose Hadi. In return, Saleh gets a formidable fighting force full of religious zeal and battlefield prowess from the Houthis to destroy the supporters of Hadi who is an enemy of both Saleh and the Houthis. It is believed that Saleh is not fighting to get back to power himself but he wants protection for his life and the wealth he has amassed during his long rule of Yemen.
In addition to the direct confrontation between the Houthis and Hadi supporters, a secessionist movement is also fomenting in the South of Yemen where a socialist-oriented republic existed between 1967 and the late 1980s. Although no statements have been issued by separatists, the flag of the former People’s Democratic Republic of Yemen has been seen flying in some demonstrations prior to the start of the present conflict.
In the regional theatre of the rising smoke of war, on the one side are Sunni-led GCC countries except Oman who are opposing the advance of the Houthis to take over Yemen by force through an unholy alliance with the supporters of the former ruler. On the other side stands Iran as it benefits indirectly from the advance of the Houthi rebels in the south of Yemen by means of expanding its influence in the Arab region and reaching out to the Shiite-Arab population in the Gulf countries, including Saudi Arabia.
It is noteworthy that to date neither the Chairman of the OIC Summit (Egypt) nor Saudi Arabia which is leading the military strikes against Houthi rebels in Yemen has convened an emergency session of the OIC Foreign Ministers on the situation of Yemen. At the 12th OIC Summit in February 2013 the OIC leaders had mentioned Yemen in their Final Communique commending the achievements of the GCC countries to resolve the crisis in Yemen and achieve a peaceful transition to power.
Instead, the situation in Yemen was discussed at the 22-member Arab Summit in Cairo last week (28 March 2015) which endorsed General Sisi’s suggestion to form a Joint Arab Defence Force to meet the challenges facing the Arab wold.
As long as there is use of force, there is little hope that the GCC or UN brokered talks can bring any lasting settlement for the crisis in Yemen and keep it a united country under a democratic constitution and government of national unity.

Islamabad. 1 April 2015.

Yemen map 1

 

Why the Dharna has not Gone Away: A Political Analysis

WP_20140613_12_25_46_Pro

Contrary to Government’s assessment that the PTI and PAT public protest in Islamabad which started in August 2014 would have limited shelf-life and will not last beyond a few weeks, the Islamabad dharna – literal meaning in Urdu – stay put – has continued to attract the people and become a family affair beyond the voices of angry young men. If the growing interest in the daily speeches of Imran Khan and Tahirul Qardi are any guide, the protesters do not seem to be going away any soon despite the hot sunny days and monsoon rains of the last two months and the soon-to-come wintery nights of October. Media channels which compete with each other to replace old news with new headlines discovered to their surprise that the most watched channels by Pakistanis in the last few weeks were not entertainment programmes but news channels providing daily coverage to the dharna. Even housewives seem to have forsaken their favourite TV soaps to watch the happenings around the neighbourhood of Islamabad D-Chowk and Blue area on a daily basis. And now the protest is reaching to other cities and is covered live on You Tube, Whats Up, Twitter, Facebook, Flickr and Pinterest by its supporters and critics.
No one in his wildest dreams imagined that soon after the protesters reached Islamabad last August, the Prime Minister will pack up and leave Islamabad and agree to resign from his position, as demanded by PTI and PAT supporters. True that there were a few days in the early phase of the dharna when the role of the armed forces was not clear and the Government suspected the usual trick, namely the third force to usurp its democratic authority. However, after the armed forces made it clear that it was not their business to clean up the mess politicians had made, the Government knew for sure that the dharna will not be able to shake its writ and legitimate authority to govern until the next general election mandated by the constitution.
Despite this reassured position, the Government lost political ground considerably from where it stood in July when the dharna was still in the offing. All the steps it took to address the protest backfired on itself. Events went in favour of PTI and PAT instead of reinforcing the position of the government. The coming together of the main opposition PPP under the already discredited former President did not help build the image of the Prime Minister who was seen dining and feasting his political rival in Lahore and reasserting his legitimate right to govern as the elected prime minister of the country. A major concession granted by Prime Minister Nawaz Sharif to PTI by establishing a judicial commission to inquire into Imran Khan’s allegations of rigging of 2013 general election was much too late to call off the dharna. The initiative was badly timed and was handled unwisely by the Prime Minister. Even the terms of reference of the commission drafted by the law secretary left much to be desired.

A joint session of parliament convened by the Government to address the points raised by Imran Khan and to a lesser extent by Tahir ul Qadri lingered on for days but regrettably failed to address the main issue. It offered no solution beyond asserting the authority of the parliament as the representative institution of the people. The joint session also ironically exposed the intellectual level of the honourable members of this august house who were watched live by the people of Pakistan fighting their petty battles, making street-wise statements and raising points of order like students in a special measures public school. Barring a few notable exceptions worth admiring, most of the speeches avoided the real issue and kept repeating the known positions of their parties. The joint session confirmed the negative public impression that the people’s representatives are nothing more than the guardians of their own personal egos and party interests in the name of parliamentary sovereignty and public service.
The dharna also took political parties by surprise. The fast momentum of the dharna gave them not enough time to define their respective stand. MQM which is a party of ordinary hard working people could not align itself with PTI despite the fact that both parties challenge the class-based status quo of the country’s decadent political leaders. Both MQM and PTI want to bring a democracy that serves the interests of people instead of their masters. PAT and PTI also could not articulate the terms of their co-habitation despite being parallel strands of similar, if not the same revolutionary movement and ideology. JI which is a coalition partner of PTI in KPK province decided to remain neutral and impartial and even took the role of a mediator between the Government and its KPK ally. The official opposition PPP played a good-cop bad-cop role. On the one hand, PPP leaders of the opposition in the house and senate continued to criticise the Government for the irresponsible and laid back manner in which they handled the crisis from the beginning of the protest, following the Model Town killings in Lahore, till the squatting of PTI and PAT supporters on the Constitutional Avenue in Islamabad. The PPP Don, Mr Asif Zardari and his former Interior Minister Rahman Malik, on the other hand, adopted the good-cop role and threw their weight on the side of the Prime Minister and the Government assuring their support for the continuation of democracy and the present status quo.
The judiciary which has luckily stayed out of any political controversy and is seen as a credible arbiter decided not to use its authority to take suo-motto notice of the situation and give a ruling that could satisfy all concerned in a manner that was within the confines of the constitution and the demands of the protesters. It was surprising that given its record of suo motto notices in the past on small issues, the Supreme Court decided, much like the armed forces that it will not intervene and leave the politicians to clean the mess they have created themselves.
The President, being the commander of the armed forces, a symbol of the federation and an authority that sits as the head of state of the republic was in an ideal position to intervene and mediate between the concerned political actors. However, the President did not stand up to the occasion and did not prove the worth of his coveted high office. To add insult to injury, his Governors in Punjab and Sindh were more visible trying to do something about the crisis even though they are not constitutionally mandated to play this role as supporters of the government in the absence of the President’s initiative to whom they report and represent in their respective provinces.
Negotiations carried out on various tracks for a resolution of the crisis lacked legitimacy and produced confusion but not results. At first the Government did not take PTI and PAT leaders seriously. Then it welcomed the efforts made by JI. Then a government mediation committee was formed in which the Governor of Punjab was also included although he is not represented in the Parliament. Then came the Jirga of Mr Rahman Malik who claimed that his mediation was the most successful and soon people will hear the good news of reconciliation. Finally, it all came to nothing. This shows that either the Government did not take the dialogue seriously or was mislaid by the Sherpas in the political parties who wanted to take credit for their own mediation initiatives. Mr Rahman Malik’s enthusiasm to jump in a row which was initially not PPP’s but was between PML-N and PTI is a clear evidence of this failed approach.
The above answers the question why the Islamabad dharna has not gone away. But more importantly, there are three main reasons for its success: the dharna leaders are speaking the language of the people and they are loving it; the dharna has given people a social platform to get out of their cramped homes every evening and celebrate culture in a country that has no entertainment, no sponsorship of sports and no theatre for the ordinary folks; and the protest has baffled the Government as to what to do next because force has not worked and its benign neglect is being misinterpreted by many as its weakness to act. The Government has also failed to give the impression of business as usual. Foreign investors have cancelled their visits to Pakistan, the economy is suffering huge losses every day and the recent flash floods have also taken their toll on the treasury.
The argument of the protesters for a fundamental change of the governance model is strong and convincing; they have the pulse of the middle-class households, women and youth, as well as the ordinary man on the street whose priority is his wallet and not necessarily the need to walk through the complicated maze of politics. Their speeches are getting better every day despite repetition and are reaching out more to the public, the longer they are staying in Islamabad.
Songs and dance substituting classical police beatings and blood bath in what is seen essentially as a long and arduous struggle for change is a new dimension of the dharna. Instead of making it a dangerous place to be, the dharna has continued to provide a venue for young persons to meet and have fun while their parents watch them from home on their TV screens and some even join them for a break from the hard life of power outages and increasing prices of commodities of daily use. Reminds me of the days when as a young student in Islamabad I joined public protests against President Ayub Khan not knowing why I was saying ‘Go Ayub Go’ and without realising what were to follow after he was gone in 1969.
So far, the Government has decided to ignore the protests but this wilful neglect is seen by PTI and PAT supporters as tacit admission of guilt and denial of reality, especially against the background of the alleged self-serving democracy of the parliament and bad governance of the executive. The attitude of some of the cabinet ministers has been uncharacteristically hostile and they have not convinced the people that they retain the moral high ground to govern, even though they have the legal authority and constitutional backing to remain in power until their full term is served. Combined with this lack lustre performance is the work of government ministries and departments, including provincial governments, parastatals and loss making public corporations which has hardly anything to show as a role model of good public service. There are small exceptions of individual sacrifices and exemplary performances but these are only patches of greens in the large barren hinterland.
What Should the Government do in such circumstances -continue to ignore the dharna and let the economy bleed through its Achilles heel or let go something that resolves the crisis and still gives it the moral and legal authority to call the shots. If I were the Prime Minister who believed that the majority of the people supported his policies of making Pakistan a strong powerhouse of growth and development, I will take the high moral ground of reshuffling the cabinet and announcing fresh elections within 180 days. I would in the meanwhile revamp the election commission and appoint a capable administrator – not a retired judge as tradition dictates – to head it. In the first 90 days I will freeze postings and transfers, put a hold on all new contracts and foreign agreements and focus on elections. I will organise a national census, call local elections, mandate the election commission to update voters’ lists and assign the judiciary and parliament to look into the grievances of the dharna protesters. In the remaining 90 days I would make way for a neutral, impartial and capable caretaker administrator to make arrangements for a fair and independent election for the nation. I would focus on my party leadership and start my campaign in full swing when all other political parties do the same. In 180 days the nation will know who is a genuine leader and who is politicking. But before I do that, I need to have confidence in me that I am a leader and not a follower. I would show the nation that I lead my party and my supporters from the front instead of being led by my advisers and cabinet colleagues, even though taking decisions by consensus is usually a good thing. But leadership in political cul-de-sacs demands leading on time and from the top.
Syed Sharfuddin
London: 28 September 2014

 

Margalla Hills WP_20140613_19_44_49_Pro

The Trouble with Caretaker Government

SharafThe idea of holding free and fair elections under a neutral caretaker government sounds attractive for two reasons: a level playing field for all contestants and an administration which is entirely neutral safeguarding the integrity of the ballot. Both these assumptions, even though well-intentioned, have adverse implications for the future of democracy.

Appointment of a caretaker administration implies that the incumbent government does not enjoy the confidence of political parties for facilitating a free and fair election and should resign before the poll. In developed democracies, there is no concept of swearing in a caretaker government to conduct the immediately following general election. The outgoing government remains in office until such time elections have been held and a new parliament is formed, although such governments do not take policy decisions nor act in a manner that may impact on the function of the new administration.The 1973 Constitution of Pakistan envisaged a similar setup for the conduct of general elections. However, the death of General Zia in 1988 and subsequent dismissals of governments in the 1990s under Article 58-2(b) necessitated the formation of caretaker governments to oversee fresh elections. Regrettably, the elections conducted by those caretaker administrations did not result in setting any high standards which should justify the continuation of this practice. No election in Pakistan has been without controversy.

The caretaker clause in Article 224 of the Constitution, which was introduced by the military government under the LFO of 2002, allows the president and the governors in the provinces to appoint caretaker governments and cabinets without any defined parameters. The only restriction imposed is on the caretaker prime minister and the chief ministers who are not eligible to contest the immediately following election of such assemblies.

Caretaker governments are usually a feature of new democracies or countries coming out of the shadows of a civil war. Pakistan does not fall in either category. Pakistan’s democratic institutions are fairly developed and its political parties and civil society have a degree of sophistication which is comparable to that of advanced democracies.

Another difficulty with caretaker cabinets is that these are not responsible to anyone except the president or the governors in the provinces. If the president becomes controversial in an election, the credibility of the entire caretaker government is at stake.

Like other issues in democracy, elections are a process of acquiring maturity over time. If anything requires strengthening it is the power of the election commission to conduct a fair election and prevent abuse of power or authority by those not authorised to exercise it under law. It should be ensured that the army, police and the bureaucracy are placed at the disposal of the election commission.

Those cabinet ministers who intend to actively support their party candidates or those who themselves wish to contest the election should not be allowed to misuse government vehicles, property, staff and funds for the campaign. The challenge of democracy lies in accepting responsibility and following the rules; not by keeping the practitioners of democracy insulated from the reality of politics.Whatever the outcome of the popular vote, it should be respected in the true spirit of democracy and the Constitution. Even a hung parliament deserves the right to be given a chance to cobble together fragile coalitions. Democracy comes stronger with such experiences. Artificial solutions based on expediency actually harm democracy in the long run.

If a national consensus is not developed to show zero tolerance for electoral fraud and polling irregularities, and a culture of honesty and integrity is not promoted actively, a caretaker cabinet or government, howsoever neutral and honest, can do very little to reverse the systematic rigging of elections. Bangladesh offers living proof of the limitations which undermine public confidence in the caretaker government’s ability to conduct a transparent and credible election.

What is more important is a level playing field for all political parties, a state broadcaster which allocates equal time and coverage to all contestants, a community of media which sets its own codes of conduct for the coverage of election, a civil service which is completely apolitical and an election commission which is financially and administratively autonomous and enjoys the confidence of political parties and civil society.

What is also important is an electorate which is free from violence and intimidation to express its will on the day of the poll, without ghost voters lurking in the electoral rolls or stuffed ballot papers found in the boxes irrespective of whether these are transparent or opaque.

A caretaker government can never be a replacement for these important features of a free and transparent election, even if that cabinet is truly committed to its goals.

The tradition of appointing a chief election commissioner from the judiciary also needs to be reviewed. In India, the post of the chief election commissioner is regarded as an administrative position because elections require constant administrative supervision and management. The judiciary performs a highly specialised function. It interprets laws enacted by the parliament and also decides on issues of law when disputes are brought before it for a ruling.

The argument that a senior judge has the ability to interpret electoral laws better than a civil servant does not hold much ground because 90 per cent of the work of the chief election commissioner is about the management and administration of elections, and only 10 per cent is concerned with the framing of electoral laws and their interpretation. Besides, a chief election commissioner can always appoint a senior lawyer as a member of the commission, or request a court to interpret a law if there is doubt on its application in the context of elections.

An election commission which is headed by a judge of a superior court cannot substitute the court itself. Any person can challenge the decisions of the election commission before the higher judiciary. That being the case, it makes sense not to appoint the head of the election commission from the judiciary. What we need is a complete separation of powers.

The 1973 Constitution, as amended by the LFO, provides for a caretaker government to supervise the next election. It is a foregone conclusion that after the assemblies are dissolved on completion of their term in November, the present government would leave office and a new caretaker administration would be formed.

In ideal circumstances, this should not be the case. Article 224 deserves to be rewritten to recapture the spirit of the 1973 Constitution. This would be yet another step towards restoring full democracy in Pakistan.

This article was published by the author in the daily Dawn on 22 October 2007. http://m.dawn.com/news/1070581/dawn-opinion-october-22-2007

Roots of 2007 Judicial Crisis in Pakistan

SharafCompared to other democracies, Pakistan has never been a shining star in upholding the principle of the independence of the judiciary. The reasons for this underperformance are similar to those found in many developing countries and include poverty, backwardness and lack of trained and qualified judges to impart justice to large sections of the population. Those who lose out on justice are mostly women and other vulnerable social groups.

Despite recent efforts to improve the image of the judiciary in Pakistan, thousands of cases are pending in courts. However, the biggest and foremost reason for the judiciary’s poor performance is the constant interference by the executive in the affairs of the judiciary.

This interference started early in the life of the country when the then president and martial law administrator required the judiciary to take a fresh oath of office swearing allegiance to the emergency provisions leading to the military takeover of the country in 1958. This was important because while the military coup eliminated two branches of government — the legislature and executive — it did not otherwise affect the judiciary. The only way the judiciary could be neutralised by a military regime was to make the senior judges subservient to the executive and prevent them from challenging the legitimacy of the coup and other extra-constitutional measures required to run the affairs of the state under military rule.

After initial resistance to the political events in 1958, the judiciary succumbed to the pressure and accepted the argument that if it did not compromise with the situation, military courts would replace civilian courts in all spheres of the judiciary. In order to continue their jurisdiction over criminal and civilian matters without questioning the politics of the day, the judiciary decided to go along with the requirement of taking an oath of allegiance to the military dictator.

The judiciary’s validation of the coup which was applied in the State v Dosso case in 1958 was so potent that three African countries in the Commonwealth borrowed it subsequently to validate the abrogation of their constitutions by the military. Later, the Dosso reasoning was replaced by the ‘doctrine of state necessity’.

This entente cordiale between the military regimes and the judiciary proved mutually rewarding. The judiciary could continue functioning without interruption as long as it did not question the actions of the military regime. The military rulers, on the other hand, could claim that not all was taken over by them and that the courts were free to dispense justice to society without fear or favour.

Following the military overthrow of a democratically elected government in 1999 in Pakistan, the senior judiciary was again asked to take an oath of allegiance to the military chief executive. Those who dissented, like Justice Saeeduzzaman Siddiqui, had to step aside. Subsequently, the Constitution (17th amendment) act 2003, declared that all laws, rules and orders issued under the military government were deemed to have been made in accordance with the Constitution.

The country has paid a high price in terms of its image abroad as the oath of allegiance of the senior judiciary remains a big obstacle in convincing the world that Pakistan’s judiciary is truly independent of the executive. The present episode is perhaps the first time in the history of Pakistan when the judiciary seems to be exerting its independence vis-à-vis an executive which is beginning to acquire more and more powers despite the lip service paid to the theory of checks and balances.

Under the Commonwealth Latimer House principles, Pakistan is morally and politically bound to ensure and respect the separation of powers and independence of action between the three branches of government – the executive, the legislature and the judiciary.

The announcement made on behalf of the Supreme Judicial Council that the electronic and press media should be careful in discussing a matter which is ‘sub-judice’ makes matters worse for the government. In this age of the internet, the government cannot prevent foreign newspapers and TV channels from commenting on the drama which is being played out in the streets of Islamabad.

In normal circumstances, the Chief Justice, upon hearing about the charges against him from the president, should have himself announced that in view of the allegations against him, he was proceeding on leave pending the outcome of an inquiry by the Supreme Judicial Council. But the rapid action that followed Justice Iftikhar Chaudhry’s meeting with the president last Friday and his subsequent protective custody and ‘isolation’ by the security agencies led to suspicions that the government was fed up with his bold and fearless demeanour in taking suo motu notices. The chief justice had spoken about many social issues which are highly objectionable and serious in magnitude but which were never brought for legislation in parliament or if these were already covered by laws, were not fully enforced by the government.

Two recent examples of the chief justice’s suo motu notices are his ban on kite flying and expression of concern on the temporary ‘disappearance’ of people. Both actions did not go down well with the government. The Punjab government lifted the kite flying ban for two days and as a result of the death of 13 persons in unfortunate incidents is now faced with possible court cases from the affected families. The ‘disappearance’ of persons has more serious overtones because it infringes on the human rights of people.

From the point of view of the government, surprise custody of suspected individuals for questioning may be necessary to round up terrorists. It is true that Pakistan has a very important role to play in combating terrorism and that it has to show a constantly rising graph in its performance on the war on terror to keep Washington satisfied. But it is also the responsibility of the government to ensure that there is a proper balance between domestic law enforcement and human rights. All other countries of the world which have joined the war against terror have observed this balance.

Normally it is not the function of the apex court to keep issuing suo motu notices to bring about societal change. But if the Chief Justice tried to translate into action the president’s vision for a fair and just society, why should he be punished for bringing about a positive change?

It is argued that the procedure set out in clauses four, five and six of Article 209 has not been followed chronologically. Clause 5 (b) of Article 209 gives the president the authority to direct the council to inquire into the matter of misconduct but it does not give the president the power to remove or make ‘non-functional’ the concerned judge of the Supreme Court or a high court until the condition in clause 6 of Article 209 has been fully met.

The government order preventing Justice Chaudhry from performing his duties on charges of misconduct raises two fundamental questions on the application of the rule of law. The first is denial of his constitutional right to continue as Chief Justice until he is proven guilty of the charges laid against him; and the second is correctness of the composition of the body holding the inquiry against the Chief Justice in accordance with the Constitution. The present composition of the Supreme Judicial Council is without the senior-most judge of the Supreme Court after the Chief Justice.

The next senior-most judge is Justice Rana Bhagwandas. His membership of the Supreme Judicial Council is mandatory in accordance with clause 3 (a) of Article 209. Even if the president had asked the judiciary to invoke Article 209 against Justice Chaudhry, the other members of the council should have consulted Justice Bhagwandas on telephone about the date of its meeting and confirmed his participation. Sadly, this does not seem to have happened because the council met on March 13 without Justice Bhagwandas.

Although the events surrounding this interesting judicial case are not a surprise to people who have followed closely the circular email of a Supreme Court advocate, Naeem Bokhari, the action that the executive took last week was too harsh and too hasty. Stopping the Chief Justice from performing his duties with immediate effect on the basis of a letter, even if the letter contained hard facts, is not good practice.

If letters alone can form the basis of determining the fate of highly-placed people in public office, it may be recalled that last year a dozen intellectuals, former politicians and retired generals wrote an open letter to the president warning him of the dangers of continuing both as president and army chief, in the interest of the nation and for the stability, unity and consolidation of democracy in the country. The president ignored that letter, perhaps rightly so because in the affairs of the state, such letters do not mean anything.

If on the basis of the inquiry of the Supreme Judicial Council it is determined by a majority vote that Justice Chaudhry is not guilty of misconduct, can anyone imagine the embarrassment it will bring to the government? Will the president be then prepared to resign admitting an error of judgement in referring Justice Chaudhry’s case to the Supreme Judicial Council?

Moreover, if this government has taken the high moral ground that previous governments were so autocratic that they did not even spare the institution of the judiciary by forcing Sajjad Ali Shah to resign or by masterminding a physical attack on the Supreme Court, how can it defend this action which to outsiders appears similar to earlier assaults on the judiciary? The removal of the Chief Justice will clearly be seen abroad as an indication that in an election year the government wants to ensure that he is not a threat to their plans to re-elect the president in uniform and win the elections for the ruling party.

Whatever the Supreme Judicial Council decides on the reference is its constitutional duty and right. But people will be curious about the details of how the inquiry is conducted. They might also support Justice Chaudhry’s request for a public inquiry.

What is at stake is not the judicial process or the issue of transparency because there are instances where inquiries have been held in camera. What is important is that the Council also looks at the record of Justice Chaudhry’s professional performance. How much harm or good have his judicial verdicts and suo motu notices brought to the country? How far has he been instrumental in restoring the independence of the judiciary? Has he inspired his juniors in the profession to be bold and fearless in dispensing justice for the public good?

After all, none of us can claim to be a saint. If Justice Chaudhry has any vanity or personal flaws, did these come in the way of him being a responsible, bold and fair Chief Justice? Judging from the public enthusiasm and media commentaries that this case has generated, it is indeed a golden opportunity for the judiciary to set the direction of its future which the infamous Dosso case turned away from nearly half a century ago.

This article was published by the author in the daily Dawn of Pakistan on 15 March 2007. www.dawn.com/news/1069923/dawn-opinion-march-15-2007

An Exit Strategy for the Military

SharafMilitary regimes are quintessentially patriotic and unforgiving on the question of national ideology. While they mean well for their country, their understanding of the complex political issues is always limited and their record of performance often falls short of declarations.

Military regimes see democracy as a means of managing political turbulence, and not as an organic institution addressing the needs of a sustainable pluralistic society. They associate themselves with the stability and strength of the state in the fashion of l’état c’est moi. Any criticism of the military regime is seen not as an audit of the government but as an attack on the state itself.

Under military rule, the state is both too strong and too weak. A military regime continuously tries to make the state stronger. The regime also has an insatiable appetite to control and improve governance. It tries to collect more taxes, clamps hard on dissent and uses force to resolve intricate political issues. States under military regimes are inherently weak because they lack a genuine functioning democracy.

The history of military rule in Pakistan is, however, not as gloomy as often painted. In its 60 years of independence, four of Pakistan’s presidents came while serving in the army. Compared to this period, Nigeria has had more coups than Pakistan and none of its military rulers did as much for the country’s economic development as the generals in Pakistan. In Argentina during 1930 to 1983 (a total of 53 years) 14 military presidents governed the country. It is not unrealistic, therefore, to expect that Pakistan will eventually move to a civilian democratic rule without military interference.

The question arises about how to find an exit strategy for a military regime, irrespective of whether it is directly involved in politics or is using proxy parties to leave political power to a successor regime which is genuinely democratic.

The first is the scenario of a military regime going to war with another country and facing defeat, including foreign occupation. This happened in Japan after the Second World War; in Pakistan after the emergence of Bangladesh; in Greece in 1974 when to safeguard the institutional unity and prestige of the army, a faction of the senior military officers overthrew the losing junta and handed over power to a civilian caretaker government; and in Argentina where a similar defeat at the hands of the British in the Falklands war led to elections and a change of guard in 1983.

The second is the scenario of a military regime being so corrupt that even the country’s armed forces feel embarrassed about it and withdraw from power when an opportunity presents itself for change. This is precisely what happened in Nigeria when after the sudden death of General Sani Abacha in 1998, his successor, General Abdul Salami Abubakar, organised free and transparent elections in Nigeria within one year of his presidency and transferred power to an elected president.

The problem with this scenario is that not all military regimes are corrupt. In fact some are cleaner and far more responsible than the democratic administrations they replaced. General Mobutu’s notorious and incompetent reign brought as much tragedy to the former Zaire as has President Mugabe’s misrule to Zimbabwe. Ironically, Mugabe has won successive elections in his country and is not a commissioned military officer, even though he fought the war of Zimbabwe’s independence in the trenches as a comrade.

The general dissatisfaction of people against inefficiency and bad governance by an elected government in Fiji led to a military takeover in 2006 which could well have been avoided if the warning signs were read and addressed in time by the civilian government. It was also the same story that led to the 1999 coup in Pakistan.

Another scenario in the exit strategy is free and transparent elections in which the military agrees to give up power if the parties that support the regime lose the election. In doing so, the outgoing military regimes ensure that legal formalities are completed before their departure to deprive the successor democratic governments of a chance to question the laws and ordinances promulgated during military rule. This scenario applied to Uganda and Chile in the 1980s, and to Pakistan in 2003 when parliament incorporated a major portion of the Legal Framework Order in the 1973 Constitution under the Seventeenth Amendment.Sometimes a military regime may hold elections but in the aftermath of the results not being to its liking, bar the winning party from taking power. This was witnessed in the Burmese elections in 1990. In 1992, the Algerian military invalidated the first democratic elections because the party that won the majority was not ‘kosher’ by the army’s standards.

This volte-face results in weak democracies where the army is not reconciled fully to an entrenched democratic process.

There are examples of countries which had a weak tradition of democracy, such as South Korea and Taiwan, going to elections with military-backed parties and retaining power through free elections.

In this process, the military-backed parties subsequently went through political renewal and became considerably independent over time having a civilian leader, as in Taiwan. After two successive elections, the military-backed parties ultimately lost the majority in these countries and the military accepted the verdict of the people in a democratic process they could not control.

Another scenario that is not entirely democratic but allows the military to leave politics in return for a limited institutional role in the governance structure is made possible through a constitutional arrangement assuring the military a number of seats in the legislature.

The Ugandan constitution, for instance, allows the army to send a fixed number of officers to parliament under a reserved quota for the armed forces.

Pakistan has also sought to give the military an institutional role in politics through the introduction of the National Security Council which includes on its membership the chiefs of the three armed forces as well as the chairman of Joint Chiefs of Staff committee. Although the NSC is a forum for consultation, it is regarded by the opposition political parties as an unnecessary extension of the parliamentary process.

In countries coming out from the shadow of military rule, the transition to democracy takes place in two phases. In the first phase, multi-party elections result in the formation of civilian governments. These governments either retain an allegiance to their military predecessors or exhibit signs of authoritarianism which they experienced in their political struggle under the military regime.

Sometimes in the first phase of democracy a handful of powerful people exercise control over the political process and economic decision-making in the form of an oligarchy.

Democracy’s second phase is about recognising the political division of labour and respecting professional and institutional specialisations. The more specialised a body politic, the greater chances there are for it to become a stronger democracy.Specialisations lead to checks and balances. These include separation of powers between the three branches of government; separation of religion and state in all spheres of political, economic and social activity; separation of civil society from government; separation of elected representatives in the legislature and the executive from the partisans of those bodies who elect or replace them; separation of responsibilities and functions between the national government and local governments; and separation of facts from values and the vision a country has for its future.

These separations are also sometimes referred to as functional competencies. Under this arrangement, national parliaments delegate more powers to expert administrative bodies in the areas of their competence, but with due public oversight and a strict accountability regime. The acquiescence by parliament gives these bodies sufficient democratic legitimacy to function independently.

Applying this principle to new democracies, especially those in the first stage of transition, one can build a model of democracy where parliament can entrust the armed forces with certain nation-building tasks where they have a comparative advantage over the civilian sector; i.e. building new cities, developing communications infrastructure, supporting the industrial base with R&D and filling the gaps in the security, supply and knowledge sectors in society. The military establishment can thus become an invaluable tool of development while remaining subservient to the institutions of democracy.

This article was published by the author in the daily Dawn of 12 June 2007. www.dawn.com

Commonwealth Mechanisms for Democracy and Human Rights Compliance by Member States

SharafThis briefing paper was presented by Commonwealth Human Rights Initiative (CHRI) http://www.humanrightsinitiative.org/ at the Commonwealth People’s Forum, held in parallel with the Commonwealth Heads of Government Meeting in Kampala, Uganda in 2007. It covers the first ten years of CMAG’s history.

The Commonwealth has a number of compliance mechanisms which monitor the progress of human rights and democratic governance in member countries. The Commonwealth is perhaps the only international organisation which has the mandate to publicly express concern on serious or persistent violations of democratic principles in a member country, and take appropriate measures to reverse such derogation without being accused of interfering in the internal affairs of states.

The Commonwealth’s most formal mechanism for assessing member countries’ compliance with the Harare Principles is the Commonwealth Ministerial Action Group (CMAG) which is constituted by Commonwealth Heads of Government every two years. CMAG has the power to suspend countries from the councils of the Commonwealth if circumstances require such extreme measure, without waiting for formal endorsement from Heads of Government.

CMAG also has the power to readmit a suspended member in the Commonwealth without seeking Leaders’ approval, if it is satisfied that the concerned country meets the Harare benchmarks fully.

Despite some apparent setbacks in a few countries that violated the Harare Commonwealth Principles, namely Zimbabwe, Pakistan and Fiji Islands, as well as its long engagement with The Gambia, Maldives and Cameroon for democratic and electoral reform, which is yet to bear fruit, the Commonwealth has come out stronger and consistent in implementing its rules of engagement. These mechanisms, which are broadly classified as formal and informal, can be further refined and made effective through greater co-ordination within the Commonwealth family involving the Commonwealth inter- governmental bodies, Commonwealth accredited organisations and Commonwealth civil society organisations.

The Commonwealth remains the most effective organisation for pooling resources and involving governments, NGOs and media as partners in democracy and development.

Introduction

Constitutional guarantees for individual liberty and fundamental freedoms, backed by a strong and independent judiciary are an essential feature of democratic societies. Commonwealth countries’ commitment to the fundamental political values of the Commonwealth, and in particular the Harare Commonwealth Principles, is rooted in this principle. The task of deepening democracy and institution building is not possible without taking into account the role citizens play in democratic governance and the freedoms they enjoy in exercising their rights without any unlawful restrictions imposed on them by the state, institution, group or individual.

Commonwealth Heads of Government have resolved in the Harare Commonwealth Declaration and subsequent CHOGM Declarations to abide by their commitment to democracy and the rule of law and other fundamental values. They have also agreed to place their governments under certain compliance mechanisms which are collectively administered by the Commonwealth and guide the work of the association in advancing human rights in member countries.

1. INFORMAL MECHANISMS

1.1. Role of Commonwealth Agencies and Organisations

A number of Commonwealth accredited organisations such as the CPA, CLGF and CAPAM pursue their activities in the overall context of the Harare Commonwealth Principles. Although these organisations work quietly and often in their own specialised areas, they identify and promote good practice in human rights, gender equality, democratic pluralism, decentralisation and devolution and liberal democracy.

1.2. Civil Society Networks

The Commonwealth Foundation is responsible for coordinating the activities of professional associations and civil society organisations in member countries. The Foundation’s work is supported by a number of independent Commonwealth civil society organisations which focus in specific areas, such as the CHRI in human rights, and CTUC in trade union issues.

1.3. Commonwealth Media

Commonwealth media organisations, in particular the CBA, CPU and CJA have helped to free media from government control and provided training to media personnel in member countries. Media freedom is an important component of democracy and human rights.

1.4. Commonwealth Academic Institutions and Think Tanks.

Commonwealth universities and think tanks such as the CPSU have made a valuable contribution in generating fresh ideas to constantly test the relevance of the Commonwealth in modern times. They have defined the vision of the Commonwealth as an association working to empower people, promote fundamental freedoms and create economic opportunity in a globalised world.

2. FORMAL MECHANISMS

2.1. Good Offices Work of the Commonwealth Secretary- General for conflict prevention and resolution.

At the Coolum CHOGM, Commonwealth Heads of Government reiterated their commitment to strengthening the good offices role of the Secretary-General in supporting democratic practice, resolving tensions, conflict prevention and resolution and post-conflict rebuilding.

Under present arrangements, it is not possible for CMAG to formally discuss a country where the Secretary-General’s good offices role is ongoing. CMAG can only intervene if the good offices do not resulted in any tangible progress on compliance with the Harare Principles. This places the Commonwealth Secretary-General in a sensitive position. If a period of two years could be set as the upper limit for good offices, CMAG could directly engage with these countries by placing them on its agenda after this deadline.

By its very nature, the Commonwealth good offices process for conflict resolution is unpredictable and has no end date. During this period, if the fundamental human rights

2.2. The Commonwealth Secretariat

The Commonwealth Secretariat has several programmes for deepening democracy and promoting human rights in member countries which are overseen by the Human Rights Unit and the Political Affairs Division. In addition, a number of other Divisions provide support for the Secretary General’s good offices role and assist member countries in institution building and reform.

The Commonwealth Secretariat also builds strategic partnerships with other Commonwealth bodies and institutions, as well as with regional and international organisations to coordinate its work in conflict resolution, local government reform, parliamentary good practice, election observation, human rights, gender mainstreaming and legal and constitutional reform in member countries.

2.3. Special Envoys

The Secretary-General’s good offices involve the appointment of Special Envoys who assist the process of negotiations and consensus building in times of crisis and/or serious violation of Harare Principles. Special Envoys have also been appointed when member countries request assistance for resolving internal conflict or overseeing constitutional and electoral reform. A meeting of Special Envoys was held in London in 2006 to review the Commonwealth’s ongoing work and draw up lessons from their collective experiences.

The work of the Special Envoys is not easy. It is also complicated by the fact that Special Envoys are not authorised to make any commitment on behalf of the Commonwealth for technical assistance

for capacity building or development projects. This reduces the ability of Special Envoys to press for early action.

Special Envoys are also sometimes not available on a full time basis to pursue the good offices mandate in a sustained manner.

2.4. Commonwealth Election Observers

Election observation has been a flagship of the Commonwealth’s democracy and human rights programme for over fifteen years. It has provided the basis for further engagement with member governments for technical assistance for capacity building for the electoral management body, for introducing good offices and for providing vital reports to CMAG on the basis of which the Group has sometimes suspended countries from the councils of the Commonwealth.

2.5. CHOGM and Commonwealth Ministerial Meetings

The Commonwealth has taken failing countries to task through public statements of disapproval as well as through suspension from membership if they repeatedly fall short of their commitments on democracy, human rights, rule of law and separation of powers.

The Commonwealth’s disapproval of states’ non-performance on human rights goes much further than the steps taken by any of the international organisations, including the UN. Although Commonwealth Foreign Ministers have met annually since 2002, the body that has the direct mandate from Heads of Government to act as the custodian of Commonwealth’s fundamental political values is the Commonwealth Ministerial Action Group on the Harare Declaration (CMAG).

Although Heads of Government have given CMAG full powers in regard to taking appropriate measures, including imposition or lifting of suspension, they have sometimes taken matters outside the remit of CMAG as happened in the case of Zimbabwe when they decided to set up a Troika to deal with Zimbabwe. Subsequently, the Troika was expanded and became a Committee of Six Prime Ministers to deal with the Zimbabwe issue. Generally, Heads of Government have rarely interfered with the work of CMAG and endorsed its decisions.

2.6. CHOGM Chairperson-in-Office

Since the Coolum CHOGM, CMAG has also benefited from the contribution of the Chairperson in Office, whose representative is on the membership of the Group. The Secretary-General also consults the Chairperson in Office on good offices.

The role of the Chairperson in Office between one CHOGM and another is still evolving and has not yet been defined formally. To supplement this role, the Commonwealth tried the concept of the Troika, by constituting a Committee, comprising the past, current and future Chairpersons in Office, but it was not very successful.

2.7. Commonwealth Ministerial Action Group (CMAG)

CMAG is a vital source of support and encouragement to member countries in upholding the fundamental political values of the Commonwealth as enshrined in the Harare Declaration. At the same time, CMAG acts as a ‘court’ for those countries which have persistently violated Harare Commonwealth principles or undermined democracy on the grounds that these reflect national circumstances.

CMAG has provided broad strategic direction to the Commonwealth Secretary-General for the provision of technical assistance required by member governments to help with constitutional reforms, independence of the judiciary and capacity building for effective election management bodies.

CMAG’s work is guided by two mutually reinforcing mandates. These have been endorsed by all member countries. However, these mandates do not constitute any legal instrument and do not have the force of international law. These are:

(i) Millbrook Action Plan on the Harare Declaration (1995) which set up CMAG.

(ii) Realising Millbrook (March 2002) which clarified CMAG’s mandate to cover situations of serious or persistent violations of the Harare Principles other than military overthrow of democratically elected governments.

The clarified mandate of CMAG lists ten measures that CMAG can take in its engagement with the concerned member country to persuade it to comply with the Harare Principles, or face expulsion.

(i) Consultation by the Chairman of CMAG or the Secretary- General with the government concerned;

(ii) Appointing an envoy or group of eminent Commonwealth representatives to facilitate constructive dialogue in the country concerned;

(iii) Encouraging bilateral demarches by member countries, especially those within the region, both to express disapproval and to support early adherence to the Commonwealth’s fundamental political values;

(iv) Soliciting the support and intervention of regional organisations in promoting adherence to the Commonwealth’s fundamental political values;

(v) After due consultations, the prompt public expression by the Secretary-General of the Commonwealth’s collective disapproval;

(vi) Suspending the member country concerned from the Councils of the Commonwealth;

(vii) While under suspension from the councils of the Commonwealth, a member country should not receive new Commonwealth technical assistance, other than that directed to the restoration of democracy;

(viii) Stipulating an appropriate timeframe for the re-adherence to the Commonwealth’s fundamental political values, after which CMAG could recommend that the member country concerned be fully suspended from the Commonwealth;

(ix) Other steps considered necessary to engage a member government on the need for progress or to express the collective concern of the Commonwealth;

(x) Consideration of appropriate further bilateral and multilateral measures by all member states (e.g. limitation of government- to-government contacts; people-to-people measures; trade restrictions; and, in exceptional cases, suspension from the association), to reinforce the need for change in the event that the government concerned chooses to leave the Commonwealth and/or persists in violating the principles of the Harare Commonwealth Declaration even after two years.

In circumstances of continuing serious breaches of the Commonwealth’s fundamental political values, CMAG may consider recommending to Heads of Government that the member country concerned be expelled from the Commonwealth.

Step (x) has never been applied by CMAG. Nigeria returned to democratic rule before this step was contemplated in 1997. On Pakistan, Zimbabwe and Fiji Islands, CMAG went only as far as step vii, namely suspending these countries from the Councils of the Commonwealth.

3.1. There are three distinct mechanisms which enable the Commonwealth to remain engaged with member countries in support of deepening democracy, good governance, the protection of human rights, respect for the rule of law, independence of the judiciary, transparent and inclusive parliamentary processes, freedom of expression, devolved local government and political reform.

A. Formal Channels; B. CMAG Role; C. Informal Channels.

These comprise Secretary-General’s good offices role, Special Envoys,Election Observer Missions, Commonwealth Secretariat, CHOGM and other Commonwealth Ministerial Meetings, Consultations with Chairperson-in Office, Regular Sessions and extra-ordinary Meetings; Submissions to CMAG, Eve of CHOGM Meeting and Report to CHOGM, CMAG Ministerial Missions; Commonwealth Foundation, Commonwealth accredited organisations, Commonwealth civil society and media organisations, Other relevant specialised bodies, academic institutions and Think tanks.

3.2 While there is full and satisfactory coordination between A & B and growing coordination between A & C, there is hardly any coordination between B & C. Closer interaction between civil society and CMAG can build confidence of the countries under CMAG’s audit and multiply channels of assistance. It will also help build domestic capacity for monitoring compliance and release resources for work in other priority areas to link democracy with development.

3.3. The volume and division of work between A & C is balanced but the same is not the case between A & B. While there were as many as 12 countries on the good offices activity in the period following the Malta CHOGM, there were only two countries on the CMAG’s agenda in the same period. CMAG also decided in 2006 to meet in fewer regular sessions than before.

3. Assessment and Conclusions

3.1. CMAG remains the most effective multilateral body in international affairs which has the ability to suspend member countries from the association for violating democratic principles. Its ability to positively engage with countries in order to support and strengthen democratic institutions should be strengthened by enabling the Group to directly call upon other relevant Commonwealth organisations and bodies such as the Commonwealth Foundation, Commonwealth Parliamentary Association, Commonwealth Local Government Forum, Commonwealth Human Rights Initiative and Commonwealth Policy Studies Unit to provide assistance through their monitoring, awareness and capacity building workshops and other training programmes.

3.2. Throughout its work, CMAG has focused on two main issues: subordination of the military under civilian democratic institutions and strengthening the machinery and processes for transparent and free elections. CMAG has not laid sufficient emphasis on promoting liberal democracy in member countries. It has not given priority to respect for fundamental freedoms and individual liberty over all other aspects of government responsibility such as equality, social justice, democracy, stability and law and order.

3.3. CMAG has often overlooked the responsibility of governments to promote sustainable development and achieve consensus building as enshrined in the Harare Declaration and reiterated in the Millbrook Action Programme. The Group has limited its work to promoting only the fundamental political values of the Commonwealth in member countries. At the Abuja CHOGM Heads of Government declared that development and democracy are interlinked and enforce each other strongly. The Millbrook Action Programme also requires that CMAG should link sustainable development to the Commonwealth’s fundamental political values and divide its work equally in both areas.

3.4. CMAG’s mandate on the measures it can take against countries failing the Harare Principles is sufficiently detailed in the Millbrook Action Programme as well as the document ‘Realising Millbrook’. However there is no clear definition of what constitutes serious or persistent violations of the Harare Principles. Member governments have escaped CMAG’s scrutiny despite situations where elections have been postponed beyond the constitutional life of the government, where political parties have not been allowed to function freely or where fundamental human rights of citizens have been abrogated. There is an urgent need to agree on some normative criteria of the breaches of Harare Principles the existence of which should justify CMAG’s direct engagement with the concerned countries, in addition to the involvement of the Chairperson in Office and the Commonwealth Secretary-General’s good offices role.

3.5. CMAG should be encouraged to take note of the June 2006 CHRI Report on the performance of Commonwealth members on the UN Human Rights Council titled: Easier Said than Done’. There are 12 Commonwealth countries currently on the UNHRC, namely, Bangladesh, Cameroon, Canada, Ghana, India, Malaysia, Mauritius, Nigeria, Pakistan, South Africa, Sri Lanka, United Kingdom and Zambia. These countries have a greater moral obligation to fulfill their human rights commitments compared to other member countries which are not represented on the Council.

3.6. In reality, the pursuit of human rights goals by the Commonwealth has been challenging. Other than CMAG and the Commonwealth Secretary General, who represents the collective voice of governments, member countries have been reluctant to speak publicly in condemnation of the serious or persistent violations of the Harare Principles by another member country. Some do so to protect their bilateral relations; others take a broader view of developments where sometimes Harare Principles are overshadowed by other more significant geo-political considerations. There are also those who prefer to keep quiet because they expect that in the event of a similar situation arising in their countries, the others will take a similar stand and not criticise them publicly.

3.7 Another challenge is that in an increasingly globalized world where regional economic blocs are emerging more powerful than global international groupings, the Commonwealth, as an inter-governmental organisation, does not have a massive development assistance budget, political or strategic dimension or military and technological portfolio to keep its members fully committed to the association’s goals.

3.8. Taken seriously, the Commonwealth not only gives weight to the voice of small and developing states in regional economic groupings, it also works in ways that are more action oriented than being just a grouping of diverse countries.

About the author. Mr Syed Sharfuddin is a former Special Adviser for Political Affairs in the Commonwealth Secretariat, London. He was Deputy Conference Secretary of CHOGM and CMAG from 2000 to 2006. Mr Sharfuddin joined the Pakistan Foreign Service in 1977 and served in senior diplomatic positions in Washington, Harare and Dhaka before joining the Commonwealth Secretariat in 1996. Mr Sharfuddin specializes in South Asia and has written regularly on democracy and good governance.