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Hagia Sofia: Changing Hands of History

By Syed Sharfuddin*

In ancient times monarchs and emperors relied on the display of sheer power and its outward symbols such as land, property, buildings and cattle to command servitude and obedience from their subjects. In traditional societies foreign expeditions were a legitimate means of acquiring additional revenue and resources to pay for security and loyalty. That world order of sorts was entirely power based. The king had the final say and what he said was the law. Might was right. The king owned land (mulk) and men. He rewarded his subjects for their bravery in battlefield or took away their lives for their mistakes and omissions. The king was the head of the executive, legislature and judiciary. The lords under the king owned peasants and their chattels. In that world order, it was obligatory for the subjects of a conquered nation to pay tributes and taxes and embrace the customs, language and religion of the victor even if he did not force them to do so. Sometimes power and moral values were combined to symbolise the victory of truth over falsehood. This is how the Pharaohs ruled ancient Egypt. When their power weakened, the Hebrews accepted the religion of Moses and prospered in the kingdoms of David, Solomon and Joseph. This is how a pagan Rome disowned its gods and goddesses to embrace Christianity under the reign of Emperor Constantine I during 306-337 CE. This is also how Islam spread in the Arabian and North African lands when Muslims expanded their faith and influence through trade and foreign expeditions. In the newly discovered world of American hinterland, the doctrine of manifest destiny justified the forced conversion of Amerindians to Christianity by European missionaries.

Then came the next world order in the so called civilised world in which the conquered subjects were given the freedom to keep their cultural practices, religion and language but show complete allegiance to their new rulers, whether it comprised a king, an oligarchy or a ruling class. However, as part of asserting his sovereignty, the new monarch, and the ruling class for that matter, either destroyed the physical symbols of the old order they defeated such as palaces, monuments and worship places or acquired these as their own. Over time, the losing nation also lost its cultural values and icons, which merged with the superior culture of the new rulers. Sometimes, the merger resulted in a hybrid culture retaining some of the stronger and popular features of the vanquished people.

During the Muslim rule of the Iberian Peninsula, architecture was used as a symbol of political power and cultural dominance over the locals. The Umayyad Caliph, Abdul Rahman, built the grand mosque of Cordova and Madinat al Zahra as symbols of his power and grandeur. But when Muslim rule ended in Spain and was replaced by Christian rulers, they took possession of Muslim icons and claimed these as their own. The grand mosque of Cordova was converted into a cathedral. It never reverted to its original status.

The Almohids who succeeded the Umayyads in Spain did not follow their predecessors’ tradition of constructing grand architectural monuments. Instead, they built palaces and mosques made of bricks in simple designs. The great mosque of Seville was built by a Spanish builder, Ahmad bin Baso on the orders of Almohid Caliph Abu Yaqub Yusuf (1163 to 1184 CE). Ahmad Baso was a master mason from Andalusia and had built many buildings for the Almohids in Cordova and Gibraltar. The mosque took ten years to complete in 1198. The base of its tall minaret served as the place of Azan. However, after the defeat of the Almohids in 1247 CE, the successor Christian ruler, Alfonso X, converted this mosque into a cathedral and ordered that the minaret of the mosque be used as the bell tower. The minaret still survives in Seville and is known as La Giralda. Alfonso X and his family are buried in the grounds of the old mosque, which was converted into a cathedral.

Alfonso X also removed Muslims from positions of power and authority in Seville and brought in the hitherto cast away Jews to replace them. They settled in areas vacated by the Muslims, and formed colonies in Barrios San Bartolommeo, Santa Maria la Blanca and Santa Cruz. Alfonso X also designated three mosques to be converted into synagogues. These Muslim worship places never returned to their original state in Christian Spain. In 2020, a retired Muslim footballer from Spain, Oumar Kanoute raised $1 million on an online fundraising campaign to build the first purpose built mosque and a Muslim cultural centre in Seville in over 800 years.

When Sultan Mehmet II, also known as Mehmet the Great, defeated the Byzantine emperor Constantine XI and conquered Constantinople in 1453, he changed the name of the conquered city to Istanbul and also converted its famous cathedral Hagia Sophia into a mosque. Documents relating to the archives of the building show that Sultan Mehmet II paid compensation to the priests of Hagia Sofia in order to meet the Islamic provision that no land or building can be used as a mosque unless its owners have been paid its sale price in full settlement of any claim. Sultan Mehmet II was under no obligation to do this because the rules of war in those times allowed the victor to claim all fallen properties as war booty. When he turned the historic building into a mosque, he also established a charitable foundation, built a market, an inn and a public bath, and added shops in the surrounding areas to form part of a trust to cover Hagia Sofia’s running expenses.

Hagia Sophia was built in 537 CE and served as the cathedral of the Eastern (Greek) Orthodox Christendom. During this period it also served as the cathedral of the Roman Catholics from 1204 to 1261. Hagia Sophia held the status of a mosque from 1453 to 1934. In 1934 it was turned into a museum in order to generate income to pay for the restoration of the ancient edifice. However, as the fortunes of the Ottomans waned with the decline of their power, the rising maintenance expenses of Hagia Sofia became difficult to meet from the income of the trust. After the fall of the Ottoman Empire the new Turkish Republic looked for ways to raise funds for the maintenance of the historic monument, which had acquired a sacred status also for the Turkish Muslims in addition to its Christian minority. Following approval by the founder of Turkey Gazi Mustafa Kemal Ataturk in 1934, the iconic building was officially declared a museum in February 1935. From 1935 to 2020 it operated as a museum containing some of the most ancient frescos, statues and religious symbols of Orthodox Christianity preserved by Turkey.

The phenomena of the religious landmarks of a fallen dynasty becoming the worship places of the successor regime of another faith were not unusual for Turkey. It was observed all over the world in keeping with the old tradition. In India, the ancient Babri mosque of Ayodhya built in 1528 on the orders of the first Moghul Emperor Babar, continued to serve the local Muslims for over four centuries until India’s independence in 1947. Two years after the independence of India, the Hindus claimed that Babri mosque was constructed on a plot of land, which was the sacred birthplace of their god Ram. In 1992 the Babri mosque was attacked and burnt down by Hindu fanatics. Indian courts remained seized of this matter for nearly seventy years. In November 2019 the Indian Supreme Court ruled that a Hindu temple should be built on the site of the fallen Babri mosque and Muslims should be given an alternate site to build a new mosque.

The Ketchaoua mosque in Algiers, which was constructed by the Ottomans around 1516 and was further expanded in 1792 by Dye Hassan Pasha was acquired by the invading French armies in Algeria in 1830 and converted into a cathedral in 1832. It was used as a church for the next 130 years. In 1962, after Algeria gained independence from the French, the Algerian people reclaimed the cathedral and converted it back into a mosque.

Islamic art and architecture in Seville, the Balkans and Russia, which had earlier witnessed Muslim domination, met the same fate. These monuments were acquired by the new rulers and absorbed in their religious and cultural traditions as part of their heritage.

A new international order was adopted by the allied powers after the end of the second-world war. This new order established the United Nations and the Bretton Woods System and sought to adjust to the new realities of maintaining world peace, decolonisation and rise of nation states. Countries in the new international order were made to sign new international conventions and protocols governing the laws of war and peace, human rights and conduct of inter-state relations. Freedom of religion and safeguarding the places of worship of minority communities became part of the international human rights instruments and national laws of many new republics. Along with these new norms of international conduct, the principles of sovereignty, political independence, non-interference in the internal affairs of another country and cooperation for peace also became the salient features of this new world order.

It is unwise to divide history in different silos and apply our present value system to comment on them. What happened centuries ago as part of the evolution of human development, such as large scale conquests, acquisitions, slavery and missionary expeditions cannot be judged in the light of our present day norms, in the same way as we wouldn’t want the future generations to find us at fault for following the value system we observe today as a result of our collective human experience. People who find the Ottoman, Spanish, French and Moghul acquisitions in ancient times wrong forget that they are judging the past from the advantage of hindsight and under completely different circumstances and rules of human existence. Similarly, those who are unhappy with the Turkish court’s decision restoring the status of Hagia Sofia today are in a denial of the past. They need to acknowledge that Hagia Sophia served as a mosque for over five centuries prior to 1934 in keeping with the laws of war prevalent in Europe in those times. Even when the post-world war new international order was drawn up, states were not required to return the ancient buildings and worship places acquired through foreign conquests to their rightful but dispossessed heirs. Indeed it is a credit to Turkey for preserving the historic sites and monuments of ancient faiths and cultures and safeguarding these as the most valuable treasure of its rich cultural and historic collection.

The question whether the Turkish cabinet’s 1934 decision was a correct decision, which has been annulled by the 2020 ruling of a Turkish court, is irrelevant. Turkey is a sovereign democratic and independent country and its judiciary has overturned the decision of a previous Turkish legislature. What is important is that since 1453, Hagia Sophia has not been used as a cathedral. Whether the people of Turkey keep it as a museum or use it as a mosque or combine the two functions in a new arrangement is not going to make Hagia Sophia a cathedral again. It is no surprise therefore that the dissenting voices against the Hagia Sophia decision are coming from the same quarters who are not prepared to give any space to political Islam in democratic governance. In many countries, public polls show how popular opinion changes over time. There is no contradiction in the two decisions taken by Turkey about Hagia Sofia in 1934 and 2020; 85 years ago it suited Turkey to declare this historic monument a museum; now it suites Turkey to reclaim Hagia Sophia as a mosque.

The people of Turkey had always wanted Hagia Sophia to be restored to the status of a mosque. Throughout Turkey’s modern history it remained a controversial subject. The court ruling does not call for removing Christian symbols from the historic building, including the large hall where five times prayers will be performed by visiting Muslim tourists and locals from 24 July. The building will continue to remain open for foreign tourists as before. The frescos of Holy Mary and archangel Gabriel, which are located in the direction of the Qibla will be made invisible through the use of lasers when the prayers are said. Jesus, Mary and Gabriel are also considered holy in Islam although Islamic tradition requires that due to their revered status they should not be physically depicted in any art form using conjecture.

By restoring the status of Hagia Sophia back to the mosque and still deciding to keep it open for foreign tourists with all the historic icons of Eastern Orthodox Christianity in place as before, Turkey has once again shown to the world that secular Muslim Islam is totally compatible with the international values of religious harmony and inter-faith tolerance, human rights and democratic values. It has also left an important question mark on other pluralistic societies where Muslims are in minority, about how the majority population in those countries treats its religious minorities and worship places, and to what extent those countries are prepared to reconcile with a past, with which they may feel uncomfortable, but which they cannot blot out from their history.
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*Mr Syed Sharfuddin is a former Special Adviser for Political Affairs, Commonwealth Secretariat, London, UK (2000-2006). He also served as CEO of Muslim Aid, UK from 2010-2014. He can be reached at sharaf.sharfuddin@gmail.com

One teleVision, Three Countries

Syed Sharfuddin*

Last September in the margins of the UN General Assembly Session in New York the President of Turkey and Prime Ministers of Pakistan and Malaysia met and agreed to launch a joint TV channel to counter the rising trend of Islamophobia in the US and Europe by bringing the rich heritage of Islam to their viewers’ homes, and promoting the values of keeping faith, tolerance, family responsibility, rule of law, justice and human rights within the Muslim community globally.

Every year, dozens of high-level meetings take place in the margins of the UNGA which draw media headlines at the spur of the moment but with no subsequent follow up or results. However, this was not a meeting for a cheap photo opportunity. The popular TRT series Dirilis Ertugrul recorded one million new subscribers on YouTube in the two weeks since its release on Pakistan state TV on 1st Ramadan. http://[https://www.aa.com.tr/en/culture/turkish-tv-series-set-to-break-youtube-record/1835014]. Although Turkish TV dramas are popular in many Islamic countries and have been dubbed in many languages, this is the first time a state broadcaster has been asked by its Head of Government to air the series and given the public an opportunity to watch it in their own language in line with the spirit of the New York meeting.

Turkey’s public national broadcaster TRT is well placed to give a practical meaning to the idea of forging a coalition of Islamic countries’ TV broadcasters, starting first with Pakistan and Malaysia and then adding others, with a view to bringing their cumulative resources on one platform and to start an international TV channel that captures the rich heritage of Islamic civilisation worldwide. To reach a global audience, the medium of this new channel will need to be English, with all programmes recorded, dubbed or subtitled in this language. English is widely understood in the parts of the world where the problem of Islamophobia is most prominent.

TRT TV has many digital TV channels which focus on news, traditional music, dramas and documentary feature films. Some of these are also aired in other languages on satellites signals in Europe, Central Asia and the Middle East. Its international news channel, TRT World, is watched in millions of households all over the world on TV and mobile devices. But all of these channels focus on Turkey reaching out to its expatriates and friends abroad and reporting on matters which are important to discuss from its national perspective. A quality TV channel which promotes the interests of multiple state players joined by a common objective is still very much lacking in the current scenario.

In starting a new TV channel the main requirement is content because in a 24/7 broadcasting range, content flows like a roaring river. A TV content must remain fresh and continuous in order to capture and retain the interest of viewers. Usually repeat programmes lose old audiences. News coverage can provide some fresh content on a daily basis but a new news channel was not what the Summit of the Three visualised in New York last year. Besides, there is no point adding one more Muslim news channel to the list of successful channels already operating globally such as Aljazeera, TRT World and Arab News TV.

From the content point of view, if the resources of three countries are pooled together, there will be no deficit of material. What will be required is converting most of the existing comedy, cultural dramas and documentaries into English for a global audience. But only one broadcaster should have the coordinating role to frame rules for ensuring balance and standardisation. TRT is well placed both in terms of resources and content to take a lead role, working in coordination with PTV in Pakistan and RTM TV1 in Malaysia.

In parallel with this work, the telecommunication authorities in the three countries should agree to allocate at least two transponders on their national satellites to enable their national public to watch foreign broadcasts of the partner countries in their homes. For example Turkey can allocate one transponder to PTV World and one to RTM TV1 on TRT satellite to enable Turkish and foreign viewers in Turkey to watch the programmes of these channels. In return, Pakistan should allocate two transponders on Pak Sat to TRT World and RTM TV1 for Pakistani viewers to be able to watch Turkish and Malaysian state TVs. Similarly, Malaysia can enable PTV World and TRT World to reach its domestic viewers through Malaysian state satellite. This will, of course, require a trilateral agreement between the telecommunication authorities to mutually extend these facilities to each other on a reciprocal basis.

This will also require necessary provisions in these agreements to comply with the international principle of not using another country’s territory or resources, in this case national satellite, to attack a third country with which the host country enjoys good relations. Another thing to watch will be the nature of programme coverage of the country’s home broadcaster because if it’s programmes do not appeal to a broader international audience, it will find its viewership decline to the extent of threatening the viability of the bigger project.

A bulk of TV viewers in all the three countries comprises of cable TV subscribers. This is not only a smart way of avoiding ugly dish installations at roof tops but also a safer option. However, in cable TV, the choice of selecting TV channels for viewing packages rests with the cable provider and not with the viewer. The broadcasting regulator governing the operation of cable TV in the three countries should make it obligatory for its cable TV providers as a requirement of securing licence that they will not obstruct the TV broadcasts of the partner countries in their cable coverage, or charge their subscribers additionally for viewing these channels.

With the development of IPTV, the digital TV packages offered by PTCL in Pakistan, Turk Cell in Turkey and the state IPTV provider in Malaysia should ensure that their IPTV Apps include the designated TV channels from partner countries as part of their free local TV package.

The vision that came out from the New York meeting of the three leaders last year is not something that can be translated in six months to a year. It requires some serious ground work to draw up the TORs of the project; the individual responsibilities three countries should mutually share to dub existing programmes and produce new ones; and buy in the commitment of private sponsors to finance the project successfully.

The project should also be launched in two stages. By next September, the three countries should finalise an agreement to host the state broadcasters of each country on their national satellites for access by their public. The second stage in the project should be the launch of a global TV, with the three countries providing the backbone of its content and mutually hosting it on all those regional satellites where they have ownership or beaming rights. Overtime, as progress is made, more countries can be added, as the coalition of the willing in the Islamic world is strengthened.

The old Chinese saying: “the journey of a thousand miles starts with a first step” is a time tested truth. Pakistan has taken the first step with the official viewing of Ertugrul in Pakistan. The next steps will follow.


* Mr Syed Sharfuddin is a former Pakistan diplomat and a former CEO of Muslim Aid UK.

Coming of a Prophesy?

By Syed Sharfuddin

عَنْ عَبْدِ اللَّهِ بْنِ عُمَرَ أَنّ رَسُولَ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ قَالَ يَا مَعْشَرَ الْمُهَاجِرِينَ خَمْسٌ إِذَا ابْتُلِيتُمْ بِهِنَّ وَأَعُوذُ بِاللَّهِ أَنْ تُدْرِكُوهُنَّ لَمْ تَظْهَرْ الْفَاحِشَةُ فِي قَوْمٍ قَطُّ حَتَّى يُعْلِنُوا بِهَا إِلَّا فَشَا فِيهِمْ الطَّاعُونُ وَالْأَوْجَاعُ الَّتِي لَمْ تَكُنْ مَضَتْ فِي أَسْلَافِهِمْ الَّذِينَ مَضَوْا وَلَمْ يَنْقُصُوا الْمِكْيَالَ وَالْمِيزَانَ إِلَّا أُخِذُوا بِالسِّنِينَ وَشِدَّةِ الْمَئُونَةِ وَجَوْرِ السُّلْطَانِ عَلَيْهِمْ وَلَمْ يَمْنَعُوا زَكَاةَ أَمْوَالِهِمْ إِلَّا مُنِعُوا الْقَطْرَ مِنْ السَّمَاءِ وَلَوْلَا الْبَهَائِمُ لَمْ يُمْطَرُوا وَلَمْ يَنْقُضُوا عَهْدَ اللَّهِ وَعَهْدَ رَسُولِهِ إِلَّا سَلَّطَ اللَّهُ عَلَيْهِمْ عَدُوًّا مِنْ غَيْرِهِمْ فَأَخَذُوا بَعْضَ مَا فِي أَيْدِيهِمْ وَمَا لَمْ تَحْكُمْ أَئِمَّتُهُمْ بِكِتَابِ اللَّهِ وَيَتَخَيَّرُوا مِمَّا أَنْزَلَ اللَّهُ إِلَّا جَعَلَ اللَّهُ بَأْسَهُمْ بَيْنَهُمْ

Translation: Ibn Umar reported: The Messenger of Allah, peace and blessings be upon him, said, “O Muhajeroon, there are 5 things with which you will be tested with and I seek refuge in Allah that you will live to see them. I) Promiscuity will become widespread among people and for that, they will be afflicted by plagues and diseases that were unknown to their forefathers. 2) They will cheat in weights and measures and for that they will be struck with famine, calamity, and the oppression of rulers. 3) They will withhold charity from their wealth and for that rain will be withheld from the sky, and were it not for the animals, there would be no rain at all. 4) They will break their covenant with Allah and His messenger and for that Allah will enable their enemies to overpower them and take away what is in their hands. 5) Their leaders will not rule according to the Law of Allah and derive no benefit from what Allah has revealed, and for that Allah will cause them to become enemies of each other.” [Source: 1.KItab Al-Fitan, Sunan Ibn Majah 4019. 2. Al Muhaddis Al Bani Khulasa Hukum Al-muhaddas Sahih fi Sahih Al Jame: 7978].

This Hadith is supported by Surah-Al-Suaara in the Quran where the social habits and commissions of eight different nations have been narrated which were akin to the above transgressions in different measures. Allah’s sent His Messengers to guide each nation, but most of them refused to accept the divine guidance and instead chose to face the consequences which led to their destruction and end.

It is not a secret that in the global Muslim community all of the above signs exist with such great clarity that no explanation is required to elaborate on the condition of the Muslim community living in Islamic countries. Ironically this community has the world’s greatest manpower, natural and mineral resources and a rich cultural heritage. Yet, nearly all the on-going conflicts in the world involve Muslims, either as aggressors or partners of aggressors, or as victims of conflicts, whether as refugees or communities caught in the crossfire. Intra-Islamic conflict costs Muslims thousands of lives and dollars every year with no end in sight. Leaders in the Islamic world remain autocratic or are terribly inefficient when elected in democracies. The economic condition of these countries, despite abundant resources, is dependent on external forces.

There is rampant under-development, unequal distribution of wealth, enormous disparities in welfare and social safety nets, and absence of justice and opportunity for the common man. Most of the Muslim leaders are not truly independent as they depend on external powers for political legitimacy and control. And finally, in the health and food security sector Islamic countries are often hit by famines and locust swarms, rendering millions at the mercy of international aid agencies. As if all this was not enough, the coronavirus pandemic is knocking on their doors after taking nearly 100,000 lives in China, Europe and the Americas.

I am not a doomsday advocate but I can say for sure that the pandemic of coronavirus has changed our world in a way we never imagined in our wildest dreams. How could anyone predict that a tiny little virus, which does not have a life of its own, could force a global lockdown and send the economies of many developed countries nosedive into recession at a level not seen since the Second World War.

On the ethical level, the pandemic of coronavirus is the reality of the world we have constructed since the last major pandemic, known as the Spanish Flu of 1918. In our cultural advancement and technological revolutions, we are helpless when confronted with the mysteries of nature. We pay lip service to human solidarity but at the same time we like the idea of nation-state to be divided into races, faiths, ethnic identities. We just don’t stop there; we also like to classified into nationalist groups, social orders and gender types. After doing away with the Berlin wall, which symbolised division, we embarked upon the grand project of constructing walls on our national borders in order to prevent the less unfortunate come to our homes and share our cakes and ale; and we have named our project a necessary measure for national security and economic prosperity.

We have divided ourselves into groups of rich nations and poor nations; those who have veto power at the UN on matters of global peace and security and those who have to comply with the decisions made by a minority over majority; and we decide in select chambers who would have peace and who should face conflict and destruction. We have built warships and air shields to defend ourselves from nuclear threat but we have not learnt the lesson from the past hurricanes that devastated the Philippines or earthquakes which raised to ground Haiti that when disaster strikes, it does not differentiate between people: black or white, rich or poor, young or old, sick or healthy, the faithful or those having no faith. Our problem is that as long as a UFO does not hit us, it does not exist. When China was fighting the coronavirus in the end of 2019, the rest of the world did not care. Business was as usual until it became unusual on our turf three months later in 2020.

On the religious level, the Pundits, Priests, Rabbis and Imams have been saying that we should not accuse coronavirus of harshness. For the orthodox communities, coronavirus is simply following the orders of the Supreme Lord who released it to teach humanity a lesson for discarding His message of compassion, peace, mercy, kindness and good behaviour. The world had steered away from the divine script and sought to change the laws of nature by tinkering with the genetic code of life of humans and animals; developing harmful weapons and chemicals; polluting our earth and space with industrial effluent, toxic waste and dangerous gasses; installing countless satellites in space and creating infinite electro-magnetic fields and rays which penetrate human body seemingly doing no harm to it externally; rewriting the codes of social behaviour and taking end of life decisions based on economic forecasts and actuarial algorithms. In April, during the commemoration of Passover, Good Friday and the start of Ramadan, thousands of faithful begged to the Lord Almighty in individual and congregational prayers to forgive the commissions of man and save the world from further destruction and collapse.

On a scientific level, virologists and epidemiologists said this is a phenomenon which repeats itself in cycles in all epochs; more recently it was SARS, then came MERS and now covid-19. As soon as a vaccine is found, it too will become extinct. Humanity pays a price for every learning curve and the present death toll is unfortunate but an inevitable part of human advancement. As of writing this piece, several countries have begun research on different vaccines, which will enter human trials as soon as the necessary regulatory approvals have been secured.

On a political level, world leaders were focused on the coronavirus in the context of saving the lives of their nationals and reversing the steep decline of their national economies.  According to estimates, the global economic growth forecast is registering between 4 to 6% decline in the GDP of Europe and other countries by the end of the first quarter of the year threatening a global recession. Every country is counting its dead daily as if keeping a track of the goals scored at the football world cup. How long this macabre scene will last, no one knows.

It is becoming clear that in a post covid-19 world, a new international order will be redrawn by the powerful countries taking into account the lessons learnt from the performance of totalitarian regimes and free democracies in dealing with the current pandemic. But let it not be a repeat of the post world war 2 arrangement where only the victors decided an international order for the rest of the world and imposed their conventions on every state to follow without consulting their peoples. It is interesting that the Bretton Woods System and the establishment of the League of Nations, the precursor of the UN, predate the independence of many Afro-Asian countries which became independent as part of the decolonisation process and had to accept many international conventions and protocols which pre-dated their independence.

We should not forget that the country most effective in containing the coronavirus disease is not a free democracy (China) and that the democracies which take pride in their liberal institutions (the US & EU) have not done well in stopping this disease, nor the global recession that is predicted to engulf the world in the remainder of 2020. Therefore the creation of a new international order will need to take into account the fine balance between political totalitarianism and free market economy as both have shown to have different strengths. China saved its nationals from coronavirus deaths to a considerable level despite being the most populous nation on earth, while Italy, the US, Spain, France and the UK could not do so with equal haste and efficiency.

In the new international order the role of international institutions should also be critically reviewed. Rules need to be redrafted to make these institutions more credible and more democratised. The inability of the UN to prevent conflicts, refugee flows and disaster mitigation, and of the WHO to predict and prevent this pandemic have already come under strong scrutiny. Part of the reason for their underperformance is that the rich and powerful countries have stopped taking global institutions seriously. Some developed countries, notably the US, have used their high contributions as a tool to politicise multilateral decision-making in their favour.

A unipolar world will not suit the new international order. It should not be an order where a country decides to limit export of a medicine needed by its population to treat the symptoms of a disease but reverses its decision after receiving a phone call from another powerful country threatening of ‘consequences’ if the shipment of the medicine were stopped due to its national interest. It should not be an order where the owner of a natural resource in not the country where it is based, but another more powerful country which has the ability to destroy it, if its terms are not accepted. It should not be an international order where the raw material from a country is exported in cents per metric ton but after processing, it is imported by the same country in Dollars per metric ton.

Countries should put together their own protocols and policies based on thought provoking ideas and social requirements. The world has changed and especially the poor and disadvantaged will suffer most in all aspects of their daily lives. We are all in the same boat no matter where we come from and what we believe in. In a strange way, isolationism has become the key word for human survival in a globalised world.

The lesson from the coronavirus disease is poignant. It is the new mantra of “survival of the fittest” in humanity’s post-modern evolution. It implies that if you haven’t got the strength as an individual or as a nation to beat the new pressures that confront you, the lease for your survival in a highly competitive world will soon run out. Is the world prepared for this grim scenario? Certainly not, because humanity demands that in the march of civilisation we take our weak and vulnerable along with us, even if we have to pick them on our shoulders.

اللهم إني أعوذ بك من السلب بعد العطاء ومن الشدة بعد الرخاء ومن الفقر بعد الغنى ومن الكفر بعد الإيمان

Say: O God, I seek refuge in You from taking away the goodness after you have given, from hardship after prosperity, from poverty after wealth, and from unbelief after faith.

April 9, 2020.

India’s Illegal Annexation of Kashmir Opens New Opportunities for Pakistan

By Syed Sharfuddin*

Executive Summary

Contrary to the general feeling in Pakistan that India’s unexpected action of 5 August 2019 has sealed the fate of the Indian Held Jammu and Kashmir (IHK), the move has opened new opportunities for Pakistan and Azad Kashmir, which were not possible to avail prior to 5 August. Rather than copying India’s action in Azad Kashmir or pursuing a military solution, Pakistan should follow a constitutional and democratic process in which the political will of the people of J&K on both sides of the LOC should be the decisive factor. This process may involve a number of democratic steps without going to war with India.

It is time for the Kashmiri People living inside and outside Kashmir to adopt their own ‘23rd March Resolution’ to accede to Pakistan. It is time that Article  257 of the 1973 Constitution is amended by two-third majority of a Constituent Assembly in Pakistan to claim the whole of Kashmir as part of Pakistan. It is time that the Supreme Court of Pakistan allows the Federation of Pakistan to officially name Gilgit-Baltistan as the fifth province of Pakistan using the principle of fundamental change of circumstances. It is time that all this is accomplished swiftly to strengthen the constitutional and legal case of Pakistan on Kashmir before the dust settles and the current most significant development in IHK becomes the new normal in India-Pakistan relations.

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While exposing the hypocrisy of the world’s so called largest democracy in illegally applying the annulment clause in Article 370 of the Indian Constitution to withdraw the special status of Indian Held Jammu & Kashmir, and rushing through a J&K Reorganisation Bill in Rajya Sabha and Lok Sabha on 5 & 6 August respectively to bifurcate J&K into two Union Territories, this action has also highlighted several challenges and opportunities which may have serious implications for peace and security in the Sub-Continent.

Instead of annexation, Kashmir’s accession to Pakistan should follow a democratic process in which the political will of the people of J&K on both sides of the LOC should be the decisive factor. This process may involve a number of steps without going to war with India.

As Pakistan’s Prime Minister Imran Khan said in Muzaffarabad on 14 August 2019, in the event of a breakdown of peace in the Subcontinent, the responsibility for not acting in time to restrain India will rest solely on the shoulders of the peace keeping organs of the United Nations  whose mandate includes upholding  the rule of international law, protection of human rights of minorities by ethnic cleaning and genocide and maintaining inter-state peace.

Challenges:
India’s illegal action will embolden the hawks in the BJP and act as a cue for Hindu extremists to harass Kashmiri Muslims. They will increase the Indian state sponsored repression on the Kashmiri Muslims with a view to making them flee their homes in the same way as Israel has done to the Palestinians in order to illegally acquire their lands through forced purchases, as well as armed intimidation. The process of ‘Hinduaisation’ of Kashmir will begin with a heavy Hindutwa agenda applied in education, jobs and businesses to the disadvantage of local Muslims.

The Indian State may invite non-Muslim families presently residing in Jammu and Ladakh to move to the Kashmir Valley to change the demography of the present Muslim-majority region. It may also provide financial incentives to those Kashmiri Hindus who left Kashmir in the past decades to return to the Valley and settle there in order to change the numbers of Kashmiri population.

The action of BJP Government on 5 August 2019 in regard to the State of Jammu and Kashmir has changed the seventy-year old status quo on the disputed territory on which India and Pakistan have gone to full-scale war twice and exchanged artillery fire on the Line of Actual Control without a single week passing peacefully.

The Indian State many also allow Dalai Lama and his followers to settle in Ladakh to create a buffer between India and China. Although China will not like this resettlement but it won’t be able to do anything about it because after 6 August 2019, Ladakh has effectively become a Union Territory without any legislature. If China does not challenge India’s action in Ladakh, it will mean whatever India does in Ladakh in the future will be its internal matter.

Having swallowed up the Sate of J&K in the Indian Union by repeating the pattern of earlier mergers such as Hyderabad, Junagadh and Manawadar, the Indian State will move next to claim Pakistan’s side of Kashmir, including Gilgit and Baltistan. This will effectively place Pakistan in a defensive position and make it hard to save its own part of Kashmir.

Contrary to the general feeling in Pakistan that India’s action of 5 August 2019 has sealed the fate of Jammu and Kashmir, the abrogation of IHK’s special status by India opens many opportunities for Pakistan and Kashmiris, which were not possible prior to 5 August.

Opportunities
Ironically, India’s action has given a timely opportunity to Pakistan, as well as to the people of Kashmir to revisit their strategy on Kashmir. This was not possible to be done prior to 5 August 2019.

Until now India had used Article 370 of its Constitution to fool those Kashmiris who had co-opted with the Indian State to exercise their autonomous status and have their own Legislative Assembly to enact laws for the people of Indian held Jammu and Kashmir. The withdrawal of the special status of IHK by India on 5 August 2019 has ended the delegated powers which the institutions of the State of J&K enjoyed on behalf of the people. In the absence of an autonomous State and dissolution of their own Assembly under Article 370, these delegated powers have returned back to the people of Indian held Kashmir.

The people of IHK are now free to convene a Grand Congress of Kashmiris living on both sides of the border in any neutral place, such as London, Oslo, New York or Toronto to pass a resolution expressing their political will to reject Indian rule and accede to Pakistan. Such as resolution will be no less historic than the 23rd March resolution of 1940 adopted in Lahore in favour of Pakistan.

Unlike the Indian Constitution, which claims the State of J&K as part of India with its territory immediately before the commencement of the Constitution on 26 January 1950, the 1973 Constitution of Pakistan makes no such claim about J&K, nor sets the boundaries of its territory. The only reference to J&K in the Pakistan Constitution appears in Article 257 which states that: “When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and the State shall be determined in accordance with the wishes of the people of that State.” Of course, this is not a legislative oversight but a deliberate omission by the drafters of the 1973 Constitution to keep the high moral ground on Kashmir for a plebiscite in accordance with UN Security Council’s resolutions and India’s erstwhile promise to the international community to implement these resolutions. But as India’s illegal behaviour subsequently proved, in the ruthless exercise of power morality is never the winner.

The 5th August action by India has ironically opened up a golden opportunity for Pakistan to make a formal claim on J&K in the Pakistan Constitution. Through a Constitutional amendment of two-third majority of both Houses of Parliament, Pakistan can now claim the entire state of J&K, including the territory held by India as the territory of Pakistan just as India has done in its Constitution. Pakistan’s Constitution should also define the territorial limits of the entire State of J&K as has ben done in the First Schedule of the Indian Constitution.

This amendment could not have been possible prior to 5 August 2019 as India would have taken a serious view of it and even regarded it as an unfriendly act worth undoing by force. However, following its own illegal action in IHK, Pakistan is legally entitled to make these amendments in its Constitution and state that while it claims the entire state of J&K as part of Pakistan, the part occupied by India is challenged by Pakistan and will be acquired at an appropriate time which suits its national interest.

Annexation of Azad Kashmir to Pakistan following India’s illegal action in a tit for tat reaction will not only play into the hands of the BJP government’s strategy which may want Pakistan to do just that but it will also seal the fate of Kashmir to a permanent status quo along the line of actual control. It is also possible that President Trump’s offer to Pakistan’s Prime Minister last month for the US to mediate in resolving the Kashmir dispute may have this scenario in mind. Furthermore, annexation is not the answer because two wrongs cannot make a right. Instead of annexation, Kashmir’s accession to Pakistan should follow a democratic process in which the political will of the people of J&K on both sides of the LOC should be the decisive factor. This process may involve a number of democratic steps without going to war with India. These steps are as follows:

Democratic Step 1:
All expatriate Kashmiris living outside India and Pakistan should convene a Grand Congress in a Western country and adopt a people’s resolution asking the Azad Kashmir Government (the only neutral Kashmiri administrative unit left after the annulment of the special status of IHK) to consider their accession to Pakistan as its 6th Province (the 5th Province already decided by the Parliament of Pakistan is Gilgit & Baltistan). Kashmiri leaders inside IHK who are able to travel or send video messages should support the convening of this Grand Congress and even address it electronically from their homes where they are under house arrest, if possible.

The UK will be an ideal location for holding this Grand Congress as a large number of expatriate Kashmiris live in this country and also because the UK was the colonial empire of the Sub-Continent India and Pakistan, which masterminded the messy partition of 1947, including the disastrous decision that Princely States of the Raj will decide their own accession to either India or Pakistan without realising that India could apply double standards to Hyderabad on the one hand and Kashmir on the other. No other country is more aware of the historic injustice done to the people of Jammu and Kashmir than Britain.

There is only a small window of time available to convene the Grand Congress. If it is delayed, the opportunity will be lost and the momentum to drive all sections of the Kashmiris to agree to accession will lose steam. Pakistan should provide moral and logistical support to the Kashmiri expatriates to meet and adopt a resolution addressed to the Azad Kashmir government and its legislature.

It is time for the people of Kashmir to adopt their own 23 March 1940 Resolution to accede to Pakistan

Democratic Step 2:
Following the passage of a resolution by the people of Kashmir meeting to decide their future in a neutral and independent country, the AJK Government should take note of the free expression of the political will of the people of Jammu & Kashmir and adopt a resolution of accession to Pakistan as the 6th Province of the Federation of Pakistan and request President Masood Khan of Azad Kashmir to consent it to and forward their request to the Government of Pakistan.

It is time that Article  257 of the 1973 Constitution is amended by two-third majority of a Constituent Assembly in Pakistan to claim the whole of Kashmir as part of Pakistan.

Democratic Step 3:
Upon receipt of this request from the President of Azad Kashmir, a joint session of Pakistani Parliament should be convened to consider the accession request and declare the whole of J&K, including IHK as the territory and jurisdiction of Pakistan.

It is time that the Supreme Court of Pakistan allows the Federation of Pakistan to officially name Gilgit-Baltistan as the fifth province of Pakistan using the principle of fundamental change of circumstances.

Democratic Step 4:
The Joint Session of the Pakistan Parliament should convert into a Constituent Assembly meeting in a Special Session to amend the Constitution of Pakistan to give effect to the changes required in declaring the whole of J&K, comprising Azad Kashmir and IHK as an integral part of Pakistan. There should neither be an annexation of Azad Kashmir nor any departure from the above steps to ensure that the entire process is democratically followed to its logical conclusion.

It is time that all this is accomplished swiftly to strengthen the constitutional and legal case of Pakistan on Kashmir before the dust settles and the current most significant development in IHK becomes the new normal in India-Pakistan relations.

Democratic Step 5:
In the final step, all countries, including the UN Security Council’s five permanent members should be briefed by Pakistan on the democratic steps taken by Pakistan to ensure that Pakistan’s reaction to India’s illegal annexation of IHK in violation of international law and UN Security resolutions is proportional, peaceful, and in accordance with the wishes of the people of Kashmir and the people of Pakistan as reflected by the decisions taken by their representative bodies.

This should be done before the dust settles and the current most significant development becomes the new normal in India-Pakistan relations.

Also see related article Post August 2019 Status of Jammu & Kashmir and Options for Pakistan

London 7 August 2019

*Mr Syed Sharfuddin is a former diplomat and a former Special Adviser on Asia in the Political Affairs Division of the Commonwealth Secretariat, London from 2000 to 2006.

To Honour the Political Will of the People of AJK & IHK, Pakistan should enact Legislation to make Kashmir the 6th Province of Pakistan and then talk Peace with India.

By Syed Sharfuddin*

Executive Summary
In the aftermath of India’s revocation of Article 370 of the Indian Constitution on the disputed territory of Indian Held Kashmir, it is no longer feasible for Pakistan to maintain the status quo on Kashmir along the UNMOGIP observed Line of Control. As an immediate first step, Pakistan should honour the wishes of the Kashmiri people from Azad Kashmir, as well as from Indian Held Kashmir, to join Pakistan by convening an extraordinary session of the two Houses of Parliament to discuss Kashmir and amend the 1973 Constitution to make Kashmir the 6th Province of Pakistan comprising the present Azad Kashmir and the entire Indian Held Kashmir minus Ladakh. Of course, the process will start from a Congress of the Kashmiri people from both parts of Kashmir meeting in a neutral capital, such as London or Norway, or a city in the USA, and passing a resolution, similar to the historic 23rd March resolution of 1940 in Lahore, to reject India’s occupation and join Pakistan. Acting on this resolution, the Azad Kashmir Assembly should meet and pass a resolution on behalf of the people of Azad Kashmir and the people of Indian Held Kashmir requesting Pakistan to accede to their demand. This will trigger Pakistan’s own response by convening a joint session of the federal Parliament and amending the 1973 Constitution to make Kashmir the 6th province of Pakistan whose territory shall comprise the present Azad Kashmir and the territory of Indian Held Kashmir minus Ladakh. A further provision will be added in the Constitution to reflect this in the international boundary of Pakistan and suggest that the new boundary will take effect from the day Indian occupation terminates in the occupied territory. Having taken this action, Pakistan should negotiate with India a pacific settlement of the Kashmir dispute with or without international mediation from a big power guaranteeing the full implementation of the peace accord. By taking away the special status of Kashmir under duress, India has returned the delegated people’s power from the abrogated Assembly back to the Kashmiri people to decide their future without a plebiscite outside of India.

On 5 August 2019, India surprised its citizens and the outside world by revoking the autonomous status of the Indian Held Jammu & Kashmir (IHK) provided under Article 370 of the Indian Constitution, and by enacting a new Jammu and Kashmir (J&K) Reorganisation Bill to make the disputed State two separate territories. Under the new arrangement, J&K will become a part of the Indian Union and have a Legislative Assembly, and Ladakh will become a part of the Indian Union without a Legislature. Prior to presenting the Bill in Rajya Sabha on 5 August 2019, which was carried by a majority vote of 125, with 61 against and 1 abstention, India’s Home Minister Amit Shah said that the decision on Ladakh was taken in view of the “long pending demand of the people of Ladakh to give them the status of a Union Territory to enable them to realise their aspirations”. For J&K he used a different yardstick, promising that peace will return to J&K in a short period (five years), without answering the criticism from the opposition Indian National Congress that the ruling BJP did not hold any consultation with the political parties, as well as the Kashmiri leadership, most of whom are locked up in jails or are under house arrest.

But the Indian action on Kashmir is no surprise to India watchers. Having failed in their attempt to silence the surge in the indigenous struggle for independence by a heavy armed presence, and causing almost every household in the Valley to bury their young dead lads chanting Pakistan Zindabad and Kashmir Baneyga Pakistan, it was not unforeseen that the new BJP government would carryout its long-standing pledge to formalise Kashmir’s merger in the Union by repealing its constitutionally protected special status and opening the disputed territory to Indians from the rest of the Union to buy property and businesses and change the demographics of IHK and ‘Indianise’ the disputed Muslim-majority Pro-Pakistan State according to the BJP text book of Hindutva.

It is also not surprising that the majority of Kashmiris feel cheated for the second time in their national struggle to free themselves form Indian occupation in three successive generations.

It is also not surprising that the majority of Kashmiris feel cheated for the second time in their national struggle to free themselves form Indian occupation in three successive generations since the messy partition of India overseen by the British in 1947. Through its latest action, the Modi government has removed the fig leaf of J&K as a disputed territory and made the people of J&K victims of tyranny of majority by using the heavy hand of the Indian Union’s democratic institutions comprising the Executive and Parliament. There is little doubt that the 5 August action taken by India in regard to IHK will be reversible even if a constitutional petition is filed at the Indian Supreme Court against today’s vote. As stated in Rajya Sabha today, the government would take the position that it will hold fresh elections in J&K and ask the new Legislative Assembly to sign a fresh instrument of accession by J&K to join the Indian Union.

With a curfew fully in place in the IHK, its past and current Muslim leadership under arrest, its democratically elected Legislative Assembly suspended and the people of Kashmir having no human rights and no say in the new reorganisation their State, the Indian Union’s theatre of the absurd in the Parliament lacks political legitimacy and is short of civilised democratic norms. However, it is a historic motion because it formally divides the Muslim-majority J&K from the Buddhist-majority Ladakh.

India could, in the future, find it easy to negotiate with the Kashmiri leadership a political settlement, which could be acceptable to them, as well as to Pakistan while keeping Ladakh out of the equation.

This development also gives Pakistan an urgent one-time opportunity to rethink its response and strengthen its position toward negotiating a final deal on J&K with India in the future.

What gives Pakistan and Kashmir a permanent advantage over India is the undeniable fact, proven by the last seventy years that until Kashmiris and Pakistan agree on a peace deal, there can be no peace in the Sub-continent, which India badly needs to keep its economic development at par with the other emerging economies in the G15.

Having binned its own political arrangement put in place to do away with the plebiscite, which supposedly placed the voice of the people of IHK in the hands of an elected Legislative Assembly deriving its so called ‘legitimacy’ from Article 370, the political power delegated by the people of Kashmir to their representatives has returned to them. They are now free to express their political will outside the Indian political process and demand independence from India and express their desire to join Pakistan from any platform. A Congress of Indian Kashmiri expatriates held in any European capital such as London or Norway, or even in the US can provide a substitute for their lost Assembly. They can invite IHK’s Kashmiri leaders online or through messages sent by them to pass a resolution condemning the failure of the previous governments in India to fulfil Jawaharlal Nehru’s commitment for holding a UN-supervised plebiscite in Kashmir; and they can reject the action of the present Indian government for annulling Kashmir’s special status and its reorganisation through a parliamentary act on 5 August 2019. Through a simple majority resolution such as the historic 23 March resolution of Pakistan, the Indian Kashmiris can declare that as a substitute for the plebiscite, they have now decided that the J&K territory in the IHK is now a part of Pakistan.

The Azad Kashmir Assembly can request the State of Pakistan to grant the people of Azad Kashmir, as well as the Kashmiri people of IHK the status of a separate and full Province in Pakistan with all the rights, as enjoyed by the constituent parts of the Federation of Pakistan.

Responding to this resolution from the Congress of the people of IHK, the Legislative Assembly of Azad Kashmir on the Pakistani side of the Line of Control can convene an emergency session and pass a resolution expressing their solidarity with the people of IHK and take a positive view of the resolution passed in their Congress. The Azad Kashmir Assembly can further request the State of Pakistan to grant the people of Azad Kashmir, as well as the Kashmiri people of IHK the status of a separate and full Province in Pakistan with all the rights, as enjoyed by the constituent parts of the Federation of Pakistan.

Article 257 of the Constitution of Pakistan states that “When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and the State shall be determined in accordance with the wishes of the people of that State”. In pursuance of this provision, the Senate and National Assembly of Pakistan should meet in an extraordinary joint session to consider the request of the Azad Kashmir Assembly to make Azad Kashmir as well as IH Kashmir a new province in the Federation.

In pursuant of Article 257 of the Pakistan Constitution and to respond to the resolution of the Azad Kashmir Assembly expressing the combined wish of the people of Kashmir on both sides of the LOC to accede to Pakistan, the Senate and National Assembly of Pakistan should meet in an extraordinary joint session and declare that the whole of Kashmir on both sides of the LOC, as far as its territorial limits extend, is a new province in the Federation of Pakistan. Article 1 of the Constitution should also be accordingly amended by two-third majority and a provision should be added that Pakistan’s borders shall comprise, in addition to its present international boundaries, the area of the disputed Indian Held J&K as shown on the present world map, whenever it becomes free from Indian occupation.

Pakistan Constitution should be accordingly amended by two-third majority and a provision should be added that Pakistan’s borders shall comprise, in addition to its present international boundaries, the area of the disputed Indian Held J&K as shown on the present world map, whenever it becomes free from Indian occupation.

On the face of it, to some people it may appear that the suggestion to recognise Azad Kashmir as the 6th province of Pakistan is walking right into the BJP strategy where India would probably want Pakistan to do the same with Azad Kashmir and settle the long standing Kashmir dispute on the basis of the status quo on the Line of Actual Control. It is possible that when President Trump offered US mediation on Kashmir to Prime Minister Imran Khan last month, he was referring to settlement of the Kashmir dispute along the LOC. However, in the step-wise action plan outlined in this paper, which I call the Sharfuddin Formula, Pakistan will be officially claiming the entire Kashmir, both Azad Kashmir as well as the IHK as the territory of Pakistan without having to go to war with India. A constitutional claim by Pakistan would not have been possible in the absence of current Indian provocation and would have elicited serious retaliation by India. But ironically, the BJP government has presented Pakistan this opportunity on a platter. Having claimed the entire territory of Kashmir as the 6th Province of the Federation in the country’s Constitution through a constitutional amendment, Pakistan can go about doing its business as before but when in the future Pakistan’s economy and defence is strong, it can always get back to India with the dictating position that India’s occupation is not acceptable in Pakistani territory.

Pakistan’s response to India’s action along the above lines, also carries several tactical advantages:

1) It will give Pakistan a new boundary which will be extended beyond the LOC to include the entire territory of IH J&K leaving Ladakh to India. Even though Jammu may have Hindu majority, keeping it together with Kashmir Valley is important for negotiations because the two regions are intrinsically linked with each other.

2) By breaking the IHK into two administrative territories India has already acquiesced in the existence of a Muslim-majority Kashmir and a Buddhist-majority Ladakh. It will be easy for Pakistan to press its case for getting Kashmir back from India instead of playing the role of an interested party that supports the Kashmiri cause politically and morally.

3) The popular resistance in IH Kashmir will find a new ray hope under the present most depressing circumstances where some people are seeing this act by the Modi government as the last nail in the coffin of resistance. By declaring the entire IH J&K as part of Pakistan constitutionally and politically, the indigenous resistance will grow stronger and ruin the chances of India hoping to gulp it down as it did other princely states in the past, notably Hyderabad. It will also give encouragement to those pessimists in Pakistan who are saying it is too late to do anything because they think that India’s ‘master stroke’ is so good, it cannot elicit a befitting counter-response.

4) The people of Kashmir will have their representatives sit in Pakistan’s Executive and Parliament and take part in the political process as Pakistani citizens with equal rights and responsibilities. Pakistan’s foreign and security policy will include their voice and provide a fresh blood in the direction of the country in settling this long-standing dispute with India on its terms.

5) Outside powers, including Pakistan’s friends do not fully understand the administrative arrangements of Azad Kashmir. The voice of Azad Kashmir gets muted abroad when Pakistani diplomats representing Pakistan speak for Azad Kashmir. Azad Kashmir’s President and Ministers are not given meeting appointments because of the complex rules of international recognition of countries. The new province will make greater impact on third countries interested in international mediation or supporting bilateral negotiations for peace in the Subcontinent.

6) It will unite different political parties and interest groups on one cause and bring a huge improvement in the current governance structures by adding focus and purpose in the national and provincial agendas.

It is worth reviewing the contingency plan and response in the light of the fresh opportunity this action has provided Pakistan and given it an opening, which was closed to it in the last 70 years for reasons which have now been overtaken by events.

The time to act on a solid long term counter strategy is now. I am sure Pakistani policy makers must have thought of this Indian development long before it was materialised by the BJP government on 5 August 2019. I am also sure that a proper response and contingency plan exists as to how the government should move next in rolling out its counter strategy. But it is also worth reviewing the contingency plan and response in the light of the fresh opportunity this action has provided Pakistan and given it an opening, which was closed to it in the last 70 years for reasons which have now been overtaken by events.

London 5 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).

A Critique of the ICJ Ruling of 17 July 2019 on the Case of Commander Kulbhushan Sudhir Jadhav, Indian Navy, cover name, Hussein Mubarak Patel, Businessman

By Syed Sharfuddin

In May 2017, India filed an application against Pakistan at the International Court of Justice (ICJ) in the Hague, maintaining that Pakistan had breached its obligations under the Vienna Convention on Consular Relations of 1963 (the Convention) to provide a fair trial to its national, Kulbhushan Sudhir Jadhav, who was arrested in Pakistan in March 2016 on charges of espionage and was awarded death sentence by a Pakistani military court in April 2017. 1

The ICJ admitted India’s application under Article 1 of the Optional Protocol to the Convention concerning Compulsory Settlement of Disputes to which both India and Pakistan are signatories. In admitting the Indian application, the ICJ dismissed the objections of Pakistan to India’s application citing abuse of process, abuse of rights and unlawful conduct by India.

The ICJ jurisdiction was limited to “providing reparation only for the injury caused by the internationally wrongful act of Pakistan that fell within the Court’s jurisdiction, namely Pakistan’s breach of obligations under Article 36 of the Convention and not of the International Covenant on Civil and Political Rights”. 2

In admitting India’s application for a hearing, the ICJ disregarded a well established rule of customary international law that normally a complaint of a State against another State regarding its national is not considered until the accused has exhausted the legal remedies available under the law of that State. In this case, ICJ did not ask India to wait for the appellate remedy available to the Jadhav to be fully exhausted in Pakistan.

The 149 paragraph verdict, given by a panel of 16 distinguished judges, including the sole dissenting ad-hoc judge from Pakistan, Justice (Retd) Tasadduq Hussain Jillani, has been claimed by both State parties as vindication of their respective legal positions.

The ICJ accepted India’s assertion that Pakistan was in breach of Article 36 of the Convention and asked Pakistan for the continued stay of the sentence pending finalisation of the proceedings in the light of the ICJ ruling.

The ICJ did not accept India’s position that the reparation of the injury should annul the decision of the Pakistani military court and ask Pakistan to free Jadhav.

The ICJ accepted Pakistan’s submission that the appropriate remedy in this case was the effective review and reconsideration of the conviction and sentence of the accused .3

The ICJ did not accept Pakistan’s position that Article 36 did not apply to persons arrested on charges of espionage 4.

Legal experts agree that the ICJ could go only as far as it has gone; that the Court had no mandate to annul the decision of the military court, within the scope of its jurisdiction, having acknowledged that Pakistan and its criminal justice system were fully compliant with due process. 5

Ruling
The full summary of the ICJ ruling announced on 17 July 2019 is contained in paragraph 149 of the decision. 6

The ICJ found that “Pakistan acted in breach of its obligations under Article 36 of the Convention: firstly, by not informing Mr. Kulbhushan Jadhav of his rights; secondly, by not informing India, without delay, of the arrest and detention of Mr. Jadhav; and thirdly, by denying access to Mr. Jadhav by the consular officers of India, contrary to their right, inter alia, to arrange for his legal representation”.

The ICJ acknowledged that Pakistan notified India on 25 March 2016 of the arrest and detention of Mr. Jadhav, as required by Article 36, paragraph 1B, of the Convention. 7

However, the fact that the notification was made some three weeks after the arrest, constituted a breach of the obligation to inform “without delay”, as required by Article 36, paragraph 1B of the Convention. 8

The ICJ held that Pakistan’s breach of paragraphs1A &1C of Article 36 of the Convention constituted “internationally wrongful acts of a continuing character”. 9. Pakistan was therefore “under an obligation to cease those acts and to comply fully with its obligations under Article 36 of the Convention. Consequently, Pakistan must inform Mr. Jadhav without further delay of his rights under Article 36, paragraph 1B, and allow Indian consular officers to have access to him and to arrange for his legal representation, as provided by Article 36, paragraphs 1A and 1C.”

The ICJ ruled that “the appropriate remedy in this case for Pakistan” was to undertake an “effective review and reconsideration of the conviction and sentence of Mr. Jadhav” by giving this process “full weight” to the “effect of the violation of the rights set forth in Article 36 paragraph 1 of the Convention, and guarantee that the violation and the possible prejudice caused by the violation are fully examined”.

The ICJ took full cognizance of the fact that the Constitution of Pakistan guarantees, as a fundamental right, the right to a fair trial; that the right to a fair trial is “absolute” and “cannot be taken away”; and that all trials are conducted accordingly and, if not, “the process of judicial review is always available”.

The ICJ left the choice of ways to Pakistan for performing its obligation to provide effective review and reconsideration of the case but it noted that “freedom in the choice of means is not without qualification”, which is that the “obligation to provide effective review and reconsideration is an obligation of result, which must be performed unconditionally”. Therefore, “the violation of the rights set forth in Article 36, paragraph 1, of the Convention, and its implications for the principles of a fair trial, should be fully examined and properly addressed; that Pakistan take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation; and [observe] a continued stay of execution which is an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Jadhav” 10.

Observation 1
In May 2017 the ICJ admitted the application of India under Compulsory Settlement of Disputes without allowing the appellate process in Pakistan to be completed.

Yet two years later, in its ruling on 17 July 2019 the ICJ took cognizance of the fact that the “Constitution of Pakistan guarantees, as a fundamental right, the right to a fair trial; that the right to a fair trial is “absolute” and “cannot be taken away”; and that all trials are conducted accordingly and, if not, “the process of judicial review is always available” to persons under consideration 11.

Observation 2
In its July 2019 ruling, the ICJ said that Pakistan consistently maintained that Article 36 did not apply to Jadhav who was not just an Indian national but also a spy. The ICJ therefore inferred from this position that under Article 36:1A, Pakistan breached its obligation to inform Mr. Jadhav of his rights under that provision”. 12

On the other hand, under Article 36:1B, the ICJ did not infer that since the concerned Indian national was doing espionage on behalf of his government, his arrest and detention in Pakistan (which was not his normal place of residence on duty) should have come to the knowledge of India on the same day on 25 March 2016 when his phone went unanswered and messages stopped coming, thereby invalidating the obligation of the receiving State to inform the sending State of the arrest of its national without delay.

Observation 3
The ICJ further stated that it will interpret the 1963 Convention according to customary rules of treaty interpretation, as reflected in Articles 31 & 32 of the 1969 Vienna Convention on the Law of the Treaties in order to remove any ambiguity or obscurity in the 1963 Convention. India has not signed the 1969 Convention. Pakistan has signed the 1969 Convention but not ratified it.

It is interesting that while the Court declined to consider Pakistan’s plea for declining India’s request for admissibility of the case on the basis of customary law, the ICJ did not mind recourse to customary law in the interpretation of the 1963 Convention.

Observation 4
In considering the provisions of the bilateral agreement of 2008 between India and Pakistan, which covers “cases of arrest, detention or sentence made on political or security grounds” and commits each side to “examine the case on its merits” 13, the ICJ noted that it does not take away the right of the accused to have consular access under Article 36 of the Convention.

The ICJ accepted that under Article 73 paragraph 2 of the Convention, the 2008 Agreement is consistent with the Convention, as it confirms, supplements, extends or amplifies the provisions of the Convention and regulates matters not covered by the Convention. Yet, the ICJ did not direct the two State parties to resolve this matter in accordance with the bilateral Agreement of 2008 15.

It may be recalled that since 1972, India has consistently maintained that the Kashmir dispute should be resolved between India and Pakistan bilaterally in accordance with the provisions of the Simla Agreement between the two countries. The two State parties, the UN and the international community have supported the bilateral option, but never said that the Simla Agreement should be disregarded and the dispute should be resolved on the basis of the UN Resolutions on Kashmir calling on India to hold a plebiscite in the disputed territory.

Observation 5
The ICJ noted that if the signatory State parties to the 2008 Agreement “had intended to restrict in some way the rights guaranteed by Article 36, one would expect such an intention to be unequivocally reflected in the provisions of the Agreement.

The ICJ ruled that Article 36 of the Convention does not exclude from its scope persons suspected of espionage, despite the clear omission of espionage in the Convention, as opposed to a bilateral agreement between two sovereign countries which explicitly provides a framework for arrest, detention or sentence made on political or security grounds and calls for consideration of cases falling under this provision on merit.

Observation 6
In regard to the breach of Article 36 paragraphs A & C of the Convention, 14, the ICJ did not accept Pakistan’s submission that Pakistan had asked for vital information such as confirming the passport details and activities of the accused to verify his nationality and profession, which were not provided by India.

In rejecting the notion of any conditionality attached to right of the accused for consular access and the right of the State of the accused to arrange legal representation for him, as provided under Article 36:1A, the ICJ did not take into consideration the facts that the accused was an employee of an Indian spy agency and his alleged terrorist activities in Pakistan had made India complicit in the crime and created a direct conflict of interest, not foreseen in the Article at the time of the drafting of the Convention. The ruling also did not mention that Pakistan partially implemented Article 36 paragraph 1A by allowing the family of the accused to meet him in person.

As for the intent of the drafters of the Convention to include espionage in Article 36, it is correct that espionage was a well known state instrument when the Convention was negotiated, but it is also correct that state-sponsored terrorism and deploying spies as terrorists’ handlers in enemy states had not been invented.

Observation 7
In considering India’s complaint, the ICJ focused its attention on Article 36 of the Convention. It did not take into consideration Article 55 of the Convention, which obliges the officers of the sending state to respect the laws and regulations of the receiving state. Although the Article is about immunities and privileges of the consular officers of the sending State, it implicates all Indian consular officers posted in Pakistan as an extension of the Indian state, which appointed Kulbhushan Jadhav to carry out espionage activities in Pakistan, and also issued him a genuine Indian passport under a false alias.

Conclusion
The ICJ ruling of 17 July 2008 adds the following to the international case law:

1.The ACJ can disregard the established principle of customary international law which states that local remedies be fully exhausted before a State brings a case to the ICJ for consideration.

2.Irrespective of the provision in Article 36 paragraph 1B which states that “if he [the accused] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State” about his arrest, it is now established by ICJ that the request of the accused, even if not expressed, is always implied under paragraph 1B. 16

3.A State arresting a foreign national is obliged to unconditionally observe Article 36 paragraphs 1A, 1B and 1C of Vienna Convention on Consular Relations (1963) regardless of the nature of the accusation, including terrorism and espionage.

Suggestions for Pakistan

While giving full effect to the detailed ruling of the ICJ in its judicial process for the Jadhav case, Pakistan should consider taking the following additional steps with the relevant national and international bodies:

1.Propose to the UN to convene a comprehensive review of the 1963 Convention and its Optional Protocol in the light of the changed nature of international relations, which include, inter alia, misuse of consular premises by sending States to undertake anti-state activities in the receiving State; State-sponsored terrorism through contracted intelligence officers and civilians posing as journalists, businessmen and INGO personnel; spread of terrorism and hatred though social media; inter-state cyber wars; and, cross border illegal financial transactions.

2.Pakistan can also, should it so wish, submit a reservation or declaration to the 1963 Convention stating that it will not consider Article 63:1B binding on the State in instances of foreign nationals arrested for proven terrorist activities or espionage, pending completion of its internal investigation. Such as resolution or declaration should first be passed by the Parliament.

Notes:
1. ICJ ruling. Paragraph 25. Full Text: The remedies requested by India in its final submissions have already been set out (see paragraph 19 above). In summary, India requests the Court to adjudge and declare that Pakistan acted in breach of Article 36 of the Vienna Convention on Consular Relations. Pursuant to the foregoing, India asks the Court to declare that the sentence of Pakistan’s military court is violative of international law and the provisions of the Vienna Convention, and that India is entitled to restitutio in integrum. It also requests the Court to annul the decision of the military court and restrain Pakistan from giving effect to the sentence or conviction, to direct Pakistan to release Mr. Jadhav and to facilitate his safe passage to India. In the alternative, and if the Court were to find that Mr. Jadhav is not to be released, India requests the Court to annul the decision of the military court and restrain Pakistan from giving effect to the sentence awarded by that court. In the further alternative, India asks the Court to direct Pakistan to take steps to annul the decision of the military court. In either event, it requests the Court to direct a trial under ordinary law before civilian courts, after excluding Mr. Jadhav’s confession and in strict conformity with the provisions of the International Covenant on Civil and Political Rights, with full consular access and with a right for India to arrange for Mr. Jadhav’s legal representation.
2. Ibid. Paragraph 135
3. Ibid. Paragraph 130
4. Ibid. Paragraph 147
5. Ibid. Paragraphs 139 & 145
6. Ibid. Full Text of Paragraph 149. The Court, (1) Unanimously, Finds that it has jurisdiction, on the basis of Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations of 24 April 1963, to entertain the Application filed by the Republic of India on 8 May 2017; (2) By fifteen votes to one [and in all other subsequent paragraphs], Rejects the objections by the Islamic Republic of Pakistan to the admissibility of the Application of the Republic of India and finds that the Application of the Republic of India is admissible; (3) Finds that, by not informing Mr. Kulbhushan Sudhir Jadhav without delay of his rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations, the Islamic Republic of Pakistan breached the obligations incumbent upon it under that provision; (4) Finds that, by not notifying the appropriate consular post of the Republic of India in the Islamic Republic of Pakistan without delay of the detention of Mr. Kulbhushan Sudhir Jadhav and thereby depriving the Republic of India of the right to render the assistance provided for by the Vienna Convention to the individual concerned, the Islamic Republic of Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations; (5) Finds that the Islamic Republic of Pakistan deprived the Republic of India of the right to communicate with and have access to Mr. Kulbhushan Sudhir Jadhav, to visit him in detention and to arrange for his legal representation, and thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (a) and (c), of the Vienna Convention on Consular Relations; (6) Finds that the Islamic Republic of Pakistan is under an obligation to inform Mr. Kulbhushan Sudhir Jadhav without further delay of his rights and to provide Indian consular officers access to him in accordance with Article 36 of the Vienna Convention on Consular Relations; (7) Finds that the appropriate reparation in this case consists in the obligation of the Islamic Republic of Pakistan to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention, taking account of paragraphs 139, 145 and 146 of this Judgment; (8) Declares that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav.
7. Ibid. Paragraph 111
8. Ibid. Paragraph 113
9. Ibid. Paragraph 134
10.Ibid. Paragraphs 141 & 149
11. Ibid. Paragraph 145
12. Ibid. Paragraph 102
13. Point vi of the Agreement on consular access between the Government of the Islamic Republic of Pakistan and the Government of the Republic of India. Islamabad, 21 May 2008.
https://treaties.un.org/doc/Publication/UNTS/No%20Volume/54471/Part/I-54471-08000002804b7dde.pdf
14. ICJ ruling. Paragraph 96
15. Text of Article 36: Communication and contact with nationals of the sending State.
1.With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;
(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
2.The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.
16. Ibid. Paragraph110

London: 18 July 2019

Pakistan Electoral System: Multiple Constituency Candidatures and their Impact on By-Elections

Syed Sharfuddin

On 14 October 2018 over 5 million voters will be going to the polls again to elect public representatives for the vacant 35 seats in the federal National Assembly and Provincial Assemblies of Pakistan. According to Pakistan Election Commission, over 300 candidates are contesting in the forthcoming bye-elections. Only last July, these seats were contested in the 2018 Pakistan General Election and voters freely exercised their right to vote. However, this exercise went waste because the candidates who won, had also won in other constituencies and decided to opt out of these constituencies resulting in fresh vacant seats.
The revised 2017 Electoral Law and 2017 Election Rules which allow citizens to contest elections from multiple constituencies need to be reviewed by the Parliament and the Election Commission of Pakistan in the light of good international practice. In a developing country like Pakistan, this second exercise is a waste of scare economic resources and a blatant abuse of democracy. Multiple candidacies mean depriving other candidates of their fair chance to get elected in the primary ballot in the first place at the time of the General Election. We all know that the incumbency factor plays a major role in the by-elections which are not held under a neutral caretaker administration which is mandated by the constitution for the conduct of a General Election.
The argument in favour of multiple-constituency candidacies is undestandable in the context proportionality. It is meant to protect the right of individual candidates to contest elections within the stipulated timeframe of the Election Commission’s published schedule of elections. If any candidate gets disqualified by an RO in a district for some reason which is disputed before an electoral tribunal, or if elections are postponed in a constituency for some reason where s/he is a candidate, s/he can still contest from another constituency where s/he is a double candidate. But at the last General Election in July 2018 there were popular politicians contesting from not just two but as many as four constituencies in order to “protect” their chances of becoming MNA or MPA. This is the height of enthusiasm you might say. At the end of the day, it was this devouring ‘yahan bhi woh, wahan bhi woh’ tendency which resulted in 35 fresh vacancies for the 14 October by-elections, enough to cause an upset in a delicately balanced Parliament if the ruling party and/or its allied parties do not win most seats.
The arrest of the opposition leader in the current circumstances immediately before the by-elections lends weight to the outcry of the opposition parties that for the second time round, they are being victimised on the eve of an important poll.
It is a matter not just for the Parliament to reflect but also for the ECP which brings good international practice in the management of elections. The custodians of democracy individually and institutionally must try to improve the electoral system irrespective of their personal preferences for systems, parties and candidates.
Any comments on the reform of multiple constituency nominations system are welcome.

13 October 2018

The Power of Establishment: Myth and Reality

By Syed Sharfuddin

It seems there is always more credit given to military establishment by the Pakistani public than it actually deserves. Whether this credit is borne out of a deep embedded fear of an overwhelming brutal force tapping their phone calls and scanning their e-conversations, or it is an expression of the public respect for a patriotic peace-keeping institution depends on who one talks to and where the interlocutor comes from. However, most of the time the credit is not positive but almost invariably critical when civil society and media see it impinging upon civil liberties and constitutional freedoms taken for granted in a democratic society.

Whether it is the fall of a single tree or bulldozing an entire forest, the military establishment is an easy scapegoat to name as the mastermind behind such actions. The ‘love’ of military establishment is so deep in the hearts of people that they have invented many nicknames for it such as Aabpara, Lalkurti, Establishment, Agriculture Department, Aliens or Militablishment. Everyone knows where it resides but no one wants to be on record to identify it publicly. Even those who claim that they have received intimidating phone calls can’t say for sure if the caller was real or an imposter. Missing persons who are fortunate to come back after receiving the hospitality of the establishment say they cannot be certain about their abductors.

While it is true that the military establishment has always taken an interest in trimming the trees or even causing the fall of certain leaves and fruits before they ripen and fall naturally in the autumn winds, it is not true that this machine is so powerful as to manage the entire echo system, bring storms and infest the forest with fungus. On the contrary it may be the making of its nemesis, the powerful land or business or peasant controlling politicians and bureaucrats working in league with the many private mafias at work in society to serve vested interests.

At this general election, I was hoping to see a perfect outcome of the systematic pre-poll rigging reported by human rights and civil society organisations and curbs on media freedoms which forced certain media houses to exercise self-censorship in covering the narrative of the pariah political party PML(N). I had heard that the military establishment had decided to bury both PML(N) and PPP and instead bring PTI as the majority party in parliament led by its favourite lad Imran Khan. I was told that the presence of army security inside police stations and the unexpected delay in the ECP’s much acclaimed RTS was designed to rig the election in the dark hours of 25 July to make sure that things went according to the establishment’s plan. But the results, when these were eventually announced, disappointed me as much as they surprised everyone.

It turned out that the military establishment was quite inefficient in translating its plans into reality. PTI did not get outright majority in NA; none of the independent candidates proudly waving Jeep as their electoral symbol during the campaign made it to NA; the blue eyed boy of the military establishment, Chaudhry Nisar lost three of four seats contested by him, winning only one PA seat; and the hand-fed parties of the establishment PSP and TLP never made it to the NA. The older rightist parties which always support he establishment also did poorly in the election, despite forming an alliance to benefit from seat adjustments.

The credit given to military establishment by its critics for everything that goes wrong in politics is not new. It is said that ever since the martial law of Iskandar Mirza, military establishment used the judiciary to advance its agenda and legitimise its influence in the public. May be it was so and the judges who thought that by legitimising coups they could keep at least one civilian institution, i.e. judiciary free from military takeover, were wrong. Devotees who regard military establishment as their Nakhuda say that even the judges’ movement against a uniform wearing President Musharraf in 2007 was sponsored by the military establishment because he wanted to settle the Kashmir dispute with India which the latter did not approve of. The current judicial activism of 2018 is also credited to military establishment instead of the CJ who has gone out of his way by taking ‘suo moto’ actions on administrative matters only to stress that the judiciary as an independent institution, not open to any influence from any outside agencies.
 
Assuming that the military establishment is all powerful and always correct, then it is hard to understand why the 2018 election did not result in an outcome which the military establishment wanted; why security lapses took place which enabled terrorists to carry out three suicide bombings during the election campaign; why Mullas became radicalised and decided to field their own candidates; and why PML(N) and PPP are still the majority parties in Punjab and Sindh after all the punctures and engineering purported to have been applied in last month’s election to push them back against the wall.

Many will answer that this is how military establishment wanted it and this is what it got in the form of a fragile coalition government so that it could still play the cards behind the scenes. But this is like saying whatever extraordinary happens in the world is sponsored by the CIA. True, Pakistan has had military governments which stymied the growth of democracy and did not allow democratic institutions to mature on their own. True, money was spent freely in buying loyalties of candidates in past elections and form GHQ-approved governments. But after 2008, democracy was supposed to have taken roots in Pakistan and whatever went wrong was supposed to be blamed on politicians instead of the military establishment, even if some elements tried to drag it into the fray. Even after two civilian governments which completed their term successfully, if the politicians are unable to take responsibility for their actions then the change will remain elusive even if the new boy on the block force implements it in the honeymoon period of his government which is always the best time to show that as a good governor you mean what you say.

One can pick even bigger questions from the past to find out the truth about the powerful establishment that Pakistanis never tire of dreading. Why this powerful establishment lost Bangladesh, the Kargil war and the strategic depth in Afghanistan? Why it did not know about the presence of UBL in its territory? Why the marine helicopters landed in Pakistani territory to take UBL away and its ADS did not activate in real time?
 
My view is different from that of the sun worshippers. The military establishment is a terrestrial institution, not an alien force to turn things around with a magical sceptre. It consists of the same people and same families which produce politicians, judges and civil servants. It has the same limitations and weaknesses as the other institutions of the state. It is human and liable to sometimes think the moon and stars but deliver only the earth. 

The sooner Pakistani people realise this the easier it will be for them to start thinking what is wrong in their policies and processes instead of passing the buck to the military establishment and say they must answer all the questions because they are the do all and be all of Pakistan. 

If you disagree please rest assured that I am open to correction. 

3 August 2018

Level-Playing Field in Pakistan’s General Election 2018

By Syed Sharfuddin

Pakistan completed its eleventh general election last month amidst serious security concerns, questions about the role of the military establishment in election and reported restrictions on certain media houses and journalists to prevent them from discussing sensitive issues. The elections were observed by 19000 volunteers from Fair and Free Election Network (FAFEN), a domestic citizen observer group, the European Union Election Observation Mission (EUEOM) and the Commonwealth Observer Group (COG).

The conclusion of all three observer groups was that on polling day, voters expressed their will freely with no complaints received from any stakeholder about the military interfering in the voting process. They also concluded that in the pre-poll period, political developments helped Pakistan Tehreek Insaf (PTI) increase its vote bank at the cost of Pakistan Muslim League-Nawaz (PML(N) and to some extent, Pakistan Peoples’ Party (PPP). The post-poll process is yet to be wrapped up as preliminary results have been contested and the Election Commission of Pakistan (ECP) has ordered recount in over 70 constituencies for both the National Assembly and Provincial Assemblies’ seats.

While the outcry of pre-poll rigging had not faded from the minds of the supporters of PML(N) and PPP, which secured second and third places respectively in the National Assembly in the 2018 general election, the long delay in the announcement of results immediately after the poll, contrary to the claims of the ECP to announce results starting 2:00 am took away the gloss from what was otherwise a peaceful and orderly polling day, except for one terrorist explosion near a polling station in Quetta which claimed the lives of 31 people.

As the midnight of 25 July 2018 approached, questions were raised about the failure of the ECP’s Rapid Transmission System (TRS) as to whether this was simply the crash of the Android App developed by the ECP for the secure online communication of the result-count of each polling station on the prescribed Form 45, or was it the real game changer in rigging which overturned the will of the people in the early hours of 26 July 2018 to produce fixed results favouring PTI.

The ECP had aimed to beat private TV channels by announcing early results instead of allowing the latter to guess the results and cause a controversy about the ECP’s counting and tabulation process. The ECP had also gone a step further to avoid criticism from losing candidates and parties that it was an ROs election, as was alleged by PTI in 2013. At this election, the ECP had recruited returning and district returning officers (ROs and DROs) from the judiciary to ensure they did not come under political pressure from the local administration or political parties to alter the results of the poll during compilation. Yet, on the day itself the ECP’s RTS App miserably failed. Its website was also woefully lacking in information about unofficial results ahead of private TV channels.

In their preliminary report released on 27 July, the European Observers pointed out that the advances made in the legal framework of elections and the measures introduced for increased women’s participation in the election had been overshadowed by the timing of criminal convictions of key politicians on account of corruption; contempt of court cases against certain candidates; and terrorism charges against the workers of one political party. The EUEOM claimed that the level-playing field for campaign lacked in equality of opportunity.

In its interim statement, the Commonwealth Observers noted that Pakistan’s 2018 general election was conducted under a substantially reformed and improved legal framework but some stakeholders questioned the impartiality of the military and judiciary and cited the timing of court cases against certain political leaders and candidates as an example on uneven playing field. The COG also noted that the media and civil society representatives they met had mentioned that editors and reporters received threats and were prevented from covering certain issues, such as the rights of minorities, performance of judiciary and the role of state institutions. Some journalists and bloggers were reported to have been kidnapped, harassed or intimidated for their critical coverage. These incidents reportedly resulted in increased self-censorship.

The 2018 general election should be seen in the context of Pakistan’s long transition to democracy. This was the second time the general election was held under a civilian administration. It was also an election which had the war on terror still waging in the background in which Pakistan lost 76,000 people, of whom 68 percent were civilians and 32 percent from the armed forces. In the weeks prior to election, three terrorist attacks in Khyber Pakhtoonkhwa and Balochistan provinces claimed the lives of 170 people including 2 provincial assembly candidates.

There is not a single election in Pakistan where the level-playing field was not disputed. The 2008 general election was organised under a caretaker government but General Musharraf held both the office of President and Chief of Army Staff. In that election, even if the PPP had not benefited from the sympathy vote on the eve of Benazir Bhutto’s assassination, the only party which suited General Musharraf’s vision of enlightened moderation was PPP. The 2013 general election was held under a civilian administration but PTI called it an ROs election alleging that it was fixed by the army and the judiciary in favour of PML(N). The same accusations are now being traded by PML(N), PPP, MMA and MQM, all losing parties against PTI in the 2018 election results.

A walk through Pakistan’s political landscape two years prior to the 2018 general election shows how PML(N) dominated the political field in the country. In the 342-seat National Assembly, PML(N) held 188 seats, followed by PPP (46 seats), PTI (23 seats), JUI (13 seats) and Independents (9 seats). The remaining parties represented in the 2013-2018 Parliament held five or less seats.

It was not just the Parliamentary majority PML(N) enjoyed in the centre. PML(N) also formed governments in Pakistan’s largest province Punjab and in Balochistan, the latter with the help of local parties. The state institutions, such as the National Accountability Bureau (NAB), Federal Investigation Agency (FIA), the Intelligence Bureau (IB), other regulatory authorities such as PEMRA, the Parliament and the Judiciary were under the control of the ruling party and unable to address the charges of corruption raised by the opposition against PML(N) leader Nawaz Sharif and his family.

Had this situation continued, there would have been no level playing field for the 2018 general election, as PML(N) would be all powerful to use the same state institutions against its opponents. But this may be a hypothetical question because what was supposed to be a realignment of institutional independence in relation to the ruling PML(N) eventually ended up clipping its wings so close to skin that it became the underdog in the weeks preceding the election, with its leader imprisoned for graft and some of its top leaders disqualified from contesting the election on account of aiding and abetting corruption or contempt of court. The fall of PML(N) from grace was not natural but induced and “all the king’s horses and all the king’s men couldn’t put ‘Humpty’ together again”.

As early as 2016, when Nawaz Sharif realised that the sceptre of Panama Papers was not going to go away, he made a clever move to play the ‘Establishment’ card, which was politically designed to restore his public image and undermine the military which he never trusted after the 1999 military coup. His two interviews to a local journalist in the daily Dawn in October 2016, and again in May 2018, were designed to nail the military as the ‘bad guys’. Although in the long run this proved unhelpful, he was able to get on board the liberal civil society and the outward looking media on his side. They bought his story that there were parallel governments in Pakistan and that not only there was a government within government but a government on top of another government.

This resulted in the making of strange bedfellows. The centre-right PML(N) and centre-left liberal media such as Dawn and Geo, and civil society organisations such as the Human Rights Commission of Pakistan (HRCP) expressed concern over military interference in civilian democracy and stressed the supremacy of civilian institutions over the military establishment. Ironically, the same liberal media and civil society, on the other hand, shared the army’s zero tolerance for corruption and graft associated with Nawaz Sharif and his family, as well as other politicians in PPP and PTI. The army was sanguine in the view that the war on terror in which it had played a major role could not be won while politicians indulged in corruption under the veil of democracy and got away with it. Still more interesting was the role of the official opposition PPP which shared the view of the liberal media and centre-right PML(N) about civil-military relations but decided against upsetting the apple cart of democracy by forcing the PML(N) government to resign half way without completing its term of office.

This explains to a large extent the two rulings by the Supreme Court in July 2017 and February 2018 which disqualified Nawaz Sharif from holding the office of Prime Minister and preventing him from keeping an official position in his party. In the first ruling, Nawaz Sharif was convicted of violating Article 62(1)(f) of the Constitution which requires a member of National Assembly to be “honest and trustworthy”. In the second ruling he was convicted of corruption resulting in his imprisonment for ten years and a fine of GBP 8 million.

Although Article 62(1)(f) of the Constitution is open to subjective interpretation and has been applied inconsistently by the courts, it was the only smart, although strictly not technically legal, way to create a level-playing field by freeing other institutions of the state such as the NAB, FIA, PEMRA and the Judiciary from the clutches of the PML(N)-led Executive and Parliament to play their independent role in exposing the corruption of politicians across all parties.

The July 2017 ruling of the Supreme Court against Nawaz Sharif was hotly debated by lawyers on both sides of the political divide supporting or opposing him. His protest phrase ‘mujhey kiyun nikala’ (why did you oust me) went viral on the internet and was used both by his supporters and the opposition to express their views. In the same ruling, the Court directed the NAB to file references against Nawaz Sharif and his family in an accountability court using the findings of the Joint Investigation Team (JIT) which it had established to probe the charges of corruption. The accountability court completed its proceedings without any pressure from the once powerful PM House. It is, however, another issue that the July 2018 judgement of the Accountability Court, convicting Nawaz Sharif for corruption, had many holes and stands a good chance of quashing if the defence is able to prove that the judge failed to find evidence of Nawaz Sharif’s corruption in the unnamed ownership of Avenfield Apartments in London and instead, relied on circumstantial inference. The conviction has been appealed by Nawaz Sharif’s lawyers in the Islamabad High Court.

The military establishment got what it wanted in the conviction of Nawaz Sharif but it went for the overkill by gagging media to write editorials on civil-military relations or cover the narrative of PML(N). Conversely, no restrictions were imposed on media supporting PTI or denouncing PML(N). The military establishment’s alleged encouragement of new and small parties such as TLP in Punjab and PSP in Sindh emboldened these parties to nominate candidates in the election beyond their electability, which eroded the right wing vote of PML(N) and the liberal but parochial vote of MQM, both of which were not kosher in the military establishment’s books. But the military establishment neither intended to, nor was it capable of stuffing ballot papers and overturning the results by hijacking the counting and tabulation process in the night of 25-26 July 2018 to get the result it wanted.

For example, the strong watch of civil society organisations and local and international observers on the military personnel who were assigned security duties inside and outside polling stations acted as a deterrent and there were no complaints of their meddling in the voting process on election day. Similarly, the extraordinary delay in election results which created doubts about the transparency of election and systematic rigging of results did not materially affect the outcome of the poll because the tabulation of Constituency result on Form 49 was based on the results of Form 45 which contained the initial count conducted by presiding officers at the 85,000 polling stations in the presence of security personnel across the country, and was shared, although not in full compliance of the ECP rules, with party agents present at the count.

Any reviews admitted by the election tribunals will take into account the data entered by presiding officers on Form 45 and the record of ballot papers on Form 46. The military establishment could not have changed thousands of Forms 45 and 46 in one night even if it planned to affect the outcome of the votes. This is substantiated by the fact that contrary to media reports that the establishment had forced a large number of PML(N) candidates to change loyalties and contest elections as independents, only 13 independents out of 1623 who contested the election, won seats in the National Assembly. Of the 120 independent candidates believed to have been backed by the military establishment for using the Jeep symbol, none, including the blue eyed boy of the military (Chaudhry Nisar), secured a place in the National Assembly.

The PSP was also totally wiped out in Urban Sindh and TLP barely managed to get one seat in the National Assembly. The pro-military MMA got only 12 seats. Interestingly, PTI which was allegedly the favourite of the army failed to win outright majority in the National Assembly, and PML(N) which held the army responsible for its misfortunes still got a robust tally of 64 seats in the National Assembly followed by 43 by the PPP. The PML(N) received the most number of seats in Punjab Assembly and PPP received the most number of seats in Sindh Assembly. There was no way the military establishment could have prevented these parties from securing these results.

Although the new and improved legal framework for the 2018 general election was strong, and the ECP had full autonomy and powers to conduct the 2018 general election, there were many areas where its shortcomings were notable. One was its inability to effectively use IT to collect and assimilate voting results electronically and to make its website live and user-friendly for the general public; to extend the voting rights to overseas Pakistanis; to adequately security vet candidates against their proscribed status and links with groups placed on anti-terrorist lists; and to take timely action on the violations of various codes of conduct by media, political parties, presiding officers and polling agents. The ECP was also criticised for lack of clarity in assigning the powers of the presiding officers and the military officers who commanded the security personnel inside and outside polling stations; for insufficient voter education; for not imparting full and proper training to election management staff; and for imposing no financial limits on political parties to hire print space and airtime for their campaign advertisements.

On the positive side, the ECP deserves congratulations for completing the voter registration and delimitation exercise based on the new Census 2018 despite numerous challenges; for enabling 53 percent electorate to come out and vote peacefully on the polling day; for giving magistrate powers to DROs, ROs, and POs to take legal action on the spot, where required; for encouraging women participation by requiring political parties to allocate at least 5 percent share in their nominations; for discouraging political parties to conclude agreements for women-free voting by requiring each constituency result to have at least 10 percent women votes balloted; and for facilitating transgender persons and people living with disabilities to cast vote without hurdles.

Democracy is not just about holding free and fair elections. Elections are the first step toward a representative government and a robust opposition safeguarding the constitutional rights of all its citizens irrespective of their vote preference; and enacting policies which benefit all, especially minorities and marginal communities. But this first step should be right, and follow right channels. It is a good sign that all opposition parties, including PML(N) and PPP have agreed to attend Parliament and seek redress through the conflict resolution mechanism provided by election tribunals.

Until the wider political issues such as civil-military relations, separation of powers between the three branches of government, an active opposition in Parliament and the enhanced role of oversight parliamentary committees as well as other institutions of the state to end corruption and misuse of privileges in public office are addressed separately and comprehensively, it cannot be said with certainty that Pakistan is out of the woods as far as the future of democracy is concerned. However, these issues relate more to political governance than election management and will take time as democracy flourishes in Pakistan, one step at a time.

London: 1 August 2018

The Commonwealth London Summit 2018

By Syed Sharfuddin

A two-day Commonwealth Heads of Government Meeting, known in the Commonwealth family as CHOGM, concluded on Friday 20 April in Windsor, the home of Windsor Castle in England, after a busy week of activities ranging from celebrating Commonwealth linkages between diverse groups of people and organisations to Foreign Ministers’ and Heads of Government consultations on global issues, including democracy, cyber security, protecting oceans, climate change, immigration, trade and investment. 

The meeting could not have come at a better time for Great Britain whose Prime Minister became the chairperson of the organisation for the next two years in addition to the British monarch remaining the Head of the Commonwealth after Queen Elizabeth II. For the first time in Commonwealth history the Secretary-General of the Commonwealth is also a British national, Baroness Patricia Scotland, who was elected at the last CHOGM as Secretary-General replacing a former Indian diplomat Kamalesh Sharma. As Chair of CHOGM, Britain is also represented on the reconstituted Commonwealth Ministerial Action Group which monitors compliance of Commonwealth Charter by member states.

The 25th CHOGM was originally planned to be held in Vanuatu late last year but it could not be held there because of severe floods which seriously affected the infrastructure of the small island state in the South Pacific. Britain came to the fore and volunteered to host the Summit in the summer of 2018 in London. The last CHOGM hosted by Britain was 21 years ago in Edinburgh in 1997. Pakistan was represented at both these meetings by a PML(N) government’s Prime Minister.

By hosting the London CHOGM almost by chance, Britain has successfully settled an old in-house debate in the Commonwealth, going as far back as 2005, about the role of the British monarch in the Association after the departure of Queen Elizabeth II who has admirably guided and led the Commonwealth since 1952 but is now showing signs of old age and fatigue. On her birthday on 21 April she will turn 92. The Queen has already cut down her official engagements and is no longer travelling overseas. At Commonwealth receptions and other public events, she has been represented by Prince Charles, the Prince of Wales. 

The Opening Ceremony of CHOGM was held on 19 April at the official residence of the Queen at Buckingham Palace, London. It was for the first time that the question of succession was mentioned in the speeches of the outgoing Chairman, the Prime Minister of Malta, as well as by the Queen herself. In 1952, the mantle of Commonwealth leadership passed from King George VI to his daughter Elizabeth II on his sudden death almost without any discussion by the membership which then comprised only eight countries. The shock of a young King’s death and a 25 years old princess holidaying in Kenya taking over as the Queen, as well as the close post-colonial association of the newly independent states with Britain left no room for a debate or discussion on the heredity principle to apply to the Commonwealth’s 1949 Declaration which founded the modern Commonwealth and required the newly independent states of the former British Empire, if they opted to become republics but wished to remain in the Commonwealth, by recognising the British monarch “as a symbol of their association and as such the Head of the Commonwealth.” Pakistan is a founding member of the modern Commonwealth born out of the London Declaration in 1949.

While it is an agreed convention for the British public to have the crown pass on from the British monarch to the Prince of Wales as the new Head of Great Britain and Northern Ireland and 16 other Commonwealth realms, there has been no such convention for Commonwealth member states to follow this principle in selecting the Head of their Association after the departure of Queen Elizabeth II. Although the Queen has admirably served the Commonwealth for over 6 decades in ways that perhaps no other Head could, always being there as a pillar of strength and symbol of unity in times of crisis, there have been open and muted republican voices in Australia, New Zealand and Canada not to continue with the tradition of the British monarch as the head of the modern Commonwealth. In the past, some nationalist African states also seemed to hold the view that an organisation of free states which promotes the values of democracy, equality and sharing power should do away with the British royal presence at the top of the organisation after the departure of the present Head of the Commonwealth. In other countries such as India or Pakistan, the sensitivity to Britain’s overwhelming weight in the Commonwealth, but not to its symbolic royal presence, remains strong but is never mentioned in official discussions. Pakistan allows its nationals to keep dual nationality with Britain but bars them from contesting the general election to parliament or from holding top positions in public office.

This matter concluded successfully at the Windsor Retreat on 20 April after 46 Heads of Government and seven Foreign Ministers representing their countries unanimously agreed in principle to have Prince Charles succeed the Queen as the new Head of the Commonwealth at the appropriate time in the future. A separate Statement of Leaders issued at the conclusion of their meeting confirmed this arrangement in the following words: “We recognise the role of The Queen in championing the Commonwealth and its peoples. The next Head of the Commonwealth shall​ be His Royal Highness Prince Charles, The Prince of Wales.”

This was, however, a foregone conclusion. A consensus on this agreement had been carefully developed through informal consultations among member states in the weeks preceding the CHOGM. Earlier, in his address at the Opening Ceremony of CHOGM the outgoing Chairman of CHOGM, the Prime Minister of Malta had praised Prince Charles for his commitment to the Commonwealth values and said: “We are certain that when he will be called upon to do so, he will provide a solid and passionate leadership for our Commonwealth.” In her address The Queen also said: “It is my sincere wish that the Commonwealth will continue to offer stability and continuity for future generations, and will decide that one day the Prince of Wales should carry on the important work started by my father in 1949.”

For some years, the Prince of Wales has been making occasional low key appearances in Commonwealth receptions and gatherings. He has established beyond doubt that he is a Commonwealth man and the most suited replacement to head this organisation after the Queen. He represented the Queen at the 2018 Commonwealth Games in Australia. He also addressed the Opening Ceremony of the London CHOGM in addition to the Queen’s valedictory address. It is most likely that Prince Charles will attend the next CHOGM in Rwanda in 2020 in lieu of the Queen. 

Britain also benefited from hosting the CHOGM at a time when the Parliament is discussing UK’s Brexit negotiations with the EU. Although the economies of Commonwealth countries do not offer an alternative to European technology, goods and expert services traded by the UK, the Commonwealth statistics give an impressive picture of finding new partners and markets for Britain outside the EU in the area of trade and investment. The Commonwealth’s strength lies in its 53 diverse nations, six continents outreach, 2.4 billion population, a robust combination of three developed and half a dozen rapidly developing economies, and a huge network of civil society organisations and professional associations kept together by a common language and shared principles and values.

The London CHOGM discussed the overall theme: ‘towards a common future and how to make it fairer, more secure, more prosperous and more sustainable’. Heads of Government adopted a Communique at the end of their meeting which reiterated Commonwealth’s established position on trade, health, education, gender equality, protection of the environment, cyber security, immigration, human trafficking and child exploitation, supporting UN efforts toward peace and dealing with violent extremism, elimination of chemical weapons, organised crime and economic sustainability. Heads of Government adopted a Commonwealth Blue Charter on ocean governance and committed themselves to taking action on safeguarding the ocean for future generations. They also agreed to enhance intra-Commonwealth trade and investment using the comparative advantages of member countries.

The side events of the Summit, namely the Commonwealth Youth Forum, Commonwealth Business Forum and Commonwealth People’s Forum covered a host of other related discussions in which the Commonwealth has developed a high degree of expertise and shared knowledge. These include human rights, gender equality, sports development, youth empowerment and leadership, international trade, technical assistance, support to small and vulnerable states and people to people contacts. 

The challenge for the Commonwealth now is to put into action the commitments its leaders have made for a better future for their 2.4 million people and the world at large.

London: 20 April 2018
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The author is a former Deputy Conference Secretary of CHOGM and served as Special Adviser in the Commonwealth Secretariat from 2000-2006. Email: sharfuddin@commonwealthconsultants.co.uk