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Constitution Making in Pakistan and its Interruptions

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Constitution is the supreme law of the land from which all public authorities derive their power.  It sets out the frame work for governance and exercise of power of the state institutions and relationship between them. At the time of independence an interim constitution was adopted by the Constituent Assembly which was modified version of India Act 1935.The Objective resolution which contained guide lines for framing the constitution was approved by the Constitution Assembly on 12 March 1948. 

Emphasis was on principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam. Prime Minister (PM),Liaquat Ali Khan headed the first Basic Principle Committee (BPC) formed the same day for framing the constitution.  The committee submitted first   report on 28 Sep 1950which was not approved mainly because it gave equal representation to both wings although East wing had more population than West and Urdu as the state language. Second draft was presented on22 Dec 1952 by PM, Khawaja Nazim ud Din (Liaquat Ali Khan had been assassinated on 15 Oct 1951). It proposed bicameral legislation, lower and upper houses  to have equal representation (upper house 60 each and lower 200 each). This also came under criticism, because of equal seats of two wings, and Urdu as state language. Third draft was presented on 5 OCT 1953, by PM, Muhammad Ali Bogra, which is also known as Bogra formula. It compromised on disparity and proposed bicameral legislation. It proposed lower house on the basis of population total 300 seats (East Bengal165, remaining4 units of West Pak 135).Upper house of 52 seats, 10 each to 5 constituent units and 2 reserved for women.  In the meantime a political development took place, provincial elections were held in East wing in March 1954. Muslim League secured only 10 seats (badly defeated). 

The assembly passed a bill in Sep 1954 which made Governor General (GG) to act on the advice of the PM. It was also made mandatory for GG to appoint PM a member of assembly who enjoys the confidence of majority.GG, Ghulam Muhammad dissolved the assembly on 24 Oct 1954.The Supreme Court headed by Justice Muhammad Munir upheld the decision under the law of necessity.  However Justice Cornelius wrote note of dissent. New Elections were held on 21 June 1955, to elect 40 members each from both wings.PM, Chaudhry Muhammad Ali, took the task of constitution making. It was passed on 29 Feb 1956 to be effective from 23 March 1956.It was mainly based on government of India Act 1935, parliamentary form of government. The state was declared as Islamic Republic of Pakistan. It was unicameral legislation to be elected on the basis of parity between the two provinces. Just after about two years, President Iskander Mirza dissolved the assemblies, abrogated constitution and appointed Gen Ayub Khan C in C Army as Chief Martial Administrator (CMLA) on 7 Oct 1958.

Main reasons announced, were enhancement of corruption in society and constitution unworkable. On 17 Oct 1958 President Iskander Mirza resigned in favor of Gen Ayub Khan, later became President and CMLA. The Supreme Court headed by Justice Muhammad Munir again legitimized the Martial Law under the law of necessity and Justice Cornelius wrote the note of dissent as he did not agree that coup could be legally justified. Gen Ayub Khan appointed Commission in Feb 60 to frame constitution which was promulgated on 8 June 1962. It had Presidential form of government, federation to have two units, East and West Pakistan. There were 40,000 Basic Democracy (BD)members to be elected from each wing. BD members were Electoral College for the elections of president, members of national and provincial assemblies.  Most powers with center. It was a unitary form of government. This constitution did not last very long, because the President became autocratic and less provincial autonomy.

The agitation started against the President Ayub Khan in late1968. He handed over powers to C-in C Army, Gen Agha Muhammad Yahyakhan who proclaimed Martial Law on 25 March 1969. As per constitution the Speaker of national assembly should have been handed over powers. This Martial Law was declared usurper by the Supreme Court. Justice, Hamood ur Rehman had written in Asma Jilani case (PLD 1972 SC 139) that Gen Yahya Khan had no authority to abrogate constitution of 1962 and impose Martial law. This was the first time that abrogating the constitution was declared unlawful. However, no action was taken against any one. After the fall of Dhaka on 16 Dec 1971, East Pakistan became Bangladesh. Zulfikar Ali Bhutto became President and CMLA on 20 Dec 71 and continued till15 April 1972 when the National Assembly adopted India Act of 1935 with amendments as an interim constitution. A committee of 25 members was formed to frame constitution and   finally the National Assembly adopted constitution (commonly known as constitution of 73) with consensus on 11 April 1973.

Main features are, parliamentary form of government, president head of state and PM head of govt. It has bicameral legislation, lower house to have seats as per population and upper house equal seats of the 4 federating units. According to this constitution, the federal government shall have control and command of the Armed Forces and supreme command of Armed Forces shall vest in the President. The President shall on the advice of the PM appoint, Chairman Joint Chiefs of Staff Committee (CJSC), and services chiefs.  The Armed forces shall, under the directions of the Federal Government defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so. This constitution was also abrogated/ held in abeyance twice once on 5 July 1977 by Gen Zia ul Haq and on 12 October 1999 by Gen Musharraf. In both cases the decisions of Army chiefs were not only legalized by the Supreme Court, but also the Military Rulers were authorized to amend the constitution.

Gen Zia amended the constitution, besides other clauses included 58- 2b which gave discretionary powers to the President to sack the government and dissolve the assemblies. It is pertinent to mention that in parliamentary form of government president is head of state and has only his secretariat and no cabinet to advice. Applying this clause Gen Zia dismissed the government of PM, Muhammad Khan Junejo (23 Mar 85- 29 May 88).  Using same clause President Ghulam Ishaque khanin the first tenure of Benazir Bhutto (2 Dec 88- 5 Aug 90)and later President Farooq Leghari in her second tenure (19 Oct 93-4 Nov 96) terminated her governments.  President GhulamIshaque Khan sacked the first government of PM, Nawaz Sharif (6 Nov 90-17 Jul 93)   and his second government (17 Feb 97-11 Oct 99) ended by coup of Gen Musharraf. The country had remained politically unstable as long as clause 58-2b was part of constitution.   It was finally removed through 18th amendment on8 April 2010. The 71years history of Pakistan is full of constitutional turmoils.

The country has been governed by 4 constitutions (twice India Act 1935, 1956 &1962), 4 times military ruleand3 times elected governments were dismissed under clause 58-2b and now1973 is in vogue. It is pertinent to mention that India got independence with Pakistan in 1947,had adopted constitution on 19 November 1949 to come into force on 26 January 1950.  It has never been abrogated or held in abeyance.  We have made a lot of experiments to frame constitution and to run the government. Infect country has been mostly governed by hit and trials. Need of the hour is a politically stable government, with strong and independent pillars of the state, judiciary, legislation, and administration. All institutions of the country are required to be strengthened to work strictly in accordance with the constitution, rules, regulations and the oath taken by various authorities.

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South Asia

Kashmir Bleeds, International Community Sleeps

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The most beautiful part of the World “Kashmir” bleeds while the International community sleeps. Snow-covered mountains, lush green pasters, blue skies, blue lakes, excellent climate, rich culture, best food, unique race – one of the most pretty races on this earth, makes Kashmir “Paradise, but India has turned it a living hell. Nine hundred thousand troops enforcing curfew since the 5th of August 2019 has turned Kashmir a prison, where 8 million people are under siege, for the most prolonged period of curfew in the known history of humankind. No food, no medicines, no fuel, no electricity, no basic neccessaties of life, yet, the brave people of Kashmir survived and kept their struggle for their legitimate right of self-determination.

Seventy-three years ago, Indian illegitimate occupation armed forces entered Jammu & Kashmir in a stab to subjugate the Kashmiri people. To this day, the brave people of Occupied Jammu & Kashmir (I.I.O.J.K.) have remained committed in their resolve to confront India and stand firm in their quest for the right to self-determination.

On the 5th of August 2019, India took further illegal and unilateral actions to change the internationally recognized disputed status of I.I.O.J.K. and alter the demographic configuration of the occupied territory.  Pakistan and the Kashmiris have unconditionally rejected this blatant travesty of law and justice. For over one year, the scale and impunity of the Indian Government’s human rights abuses have increased manifold. Through the deployment of additional troops and exceptional media and communication blackout, occupied Jammu & Kashmir has been turned into the largest open prison in the world. The world community is calling India out on its oppression, and its cover-up as one of the world’s so-called largest ‘democracies’ has been undeniably exposed.

Pakistan, along with all other nations and individuals, with human conscious, calls for the urgent lifting of the military siege and media blackout, immediate stop to the violations of human rights of Kashmiri people, release of Kashmiri leaders and youth, and an end to impunity allowed to Indian occupation forces under draconian laws.We urge the international community to play its role in exerting pressure on India to reverse its illegal course in I.I.O.J.K. and restore the Kashmiris’ fundamental human rights.

We express complete solidarity with the people of I.I.O.J.K. and assure our Kashmiri brothers and sisters that the Government and people of Pakistan remain shoulder-to-shoulder with them. Pakistan will not concede in its support until the Kashmiris realize their legitimate right to self-determination in harmony with the United Nations Security Council resolutions.

India has turned Kashmir into a volcano, which may burst any time, any moment, and may cause disaster not only to India and Pakistan but may engulf the entire region or the whole world. It is worth mentioning that India and Pakistan both are nuclear states and possess enough piles of lethal weapons to eradicate each other. Mostly, the Government in India has been hijacked by Hindu extremists, and one can expect any abnormal action from them. Or by mistake or accidentally eruption of war, might lead to nuclear war, or World War III.

India is already involved with China, and a war-like situation exists. India is holding parts of Nepal illegally and at odd with Bangladesh, Sri Lanka, Myanmar, Maldives, Sikkim, Bhutan, etc. The extremist Government in India may initiate any misadventure and endanger humanity.

The U.S. is backing India and supporting it to counter China. But, history tells, that when Americans are your friends , you do not need enemies. Former Securty Advisor in Trump Administration, Mr. John Bolten, who has worked with President Trump closely, understands him much better than anyone else. He is of the opinion that President Trump supports India, but if a war broke out between China and India, President Trump might no longer support India. Is India able to confront China???. Let the Indian think tanks and intellectuals decide it.

However, the region is highly populated, with 1.4 billion population of China, 1.2 billion population of India, 220 million population of Pakistan, and almost similar to Bangladesh, etc. The loss of humanity may cross all previous records.

The international community may awaken and take preventing measures to avert any possible disaster.

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South Asia

October 27th: The Tyranny Continues in Kashmir

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October 27 marks the beginning of Indian Occupation of the disputed territory of Jammu and Kashmir. It is forever scarred in the collective minds of the Kashmiri people as the day they became occupied.

The Kashmir conflict began in 1846 with the illegal, immoral and inhumane sale of the historic state of Jammu and Kashmir to a non-Kashmiri Dogra family for services rendered to the British Raj. From that point, onwards, Kashmiri’s have long for self-determination. Yet, tragically, their legitimate aspirations were crushed with the grotesque, irregular and illegal ascension, by the brutal foreign ruler Maharaja Hari Singh who did not have the consent of the people.  With the arrival of Indian soldiers – the historic Black Day of Occupation begins its most recent and insidious manifestation.

The Princely State of Jammu & Kashmir obtained independence on August 15, 1947, when British paramountcy lapsed.  At that moment, under international law as understood by Indian National Congress, The Muslim League and Great Britain, sovereignty in Kashmir devolved on its peoples, not its autocratic Maharaja.  Indeed, Kashmir was beset by wholesale domestic revolt against the Maharaja when independence arrived, and widened in the initial months thereafter. To save his despotism from collapse, the Maharaja requested the assistance of the Indian military on October 27, 1947, after ostensibly signing an Instrument of Accession to that nation. British Scholar, Alistair Lamb has convincingly demonstrated that the Instrument of Accession was as bogus as the Protocols of the Elders of Zion or the Donation of Constantine.  An original has never been found, and there is no plausible explanation for a disappearance if an original had ever existed. 

The people of Kashmir are constantly reminded of the resolution # 47, adopted on April 21, 1948 that states that the future status of Kashmir must be ascertained in accordance with the wishes and aspirations of the people of the territory. This resolution was agreed upon by both India & Pakistan, negotiated by the United Nations and accepted by the Security Council.

Ambassador Warren Austin of the United States said it the best in the Security Council on January 24, 1948, “…When India accepted the accession of Kashmir, it made its act stand for a great principle by stating as a part of the acceptance, that it was conditional on fair plebiscite being held to determine the will of the people of Kashmir with respect to accession. I think an example was made in history at that point.”

India, however, was soon undeceived of its delusions over Kashmir’s political yearning. Recognizing that its people would never freely vote accession to India, it contrived excuse after excuse to frustrate a plebiscite. When the United Nations proposed arbitration, a reference to the World Court, or any other method of resolving minor demilitarization quarrels, India nixed them all. After a few years, it dropped all pretense of acceding to a referendum by unilaterally proclaiming its annexation of Kashmir. India’s proclamation has never been accepted by the United Nations, which continues to list Kashmir as a disputed territory who future status is yet to be determined by its people.

History proved the British Prime Minister Clement Richard Atlee wrong when he said on November 7, 1947, “…he (Pandit Nehru) undertook that the will of the people should be ascertained, and he proposed that this should be done under the authority and supervision of the United Nations…I can’t believe that Mr. Nehru’s pledges have the sinister implications.”

India’s creepy design was also confirmed by Bertrand Russell who said in 1964 “ The high idealism of the Indian government in international matters breaks down completely when confronted with the question of Kashmir.”

So, a false narrative was concocted by India, out of nothing more than thin air, in a vain attempt to intellectually subjugate a people. This challenge is most serious, since it resonates, even today with more vigour. How often do we hear outlandish statements like, ‘Kashmir is an integral part of India’? These statements do not exist in a vacuum. They are loaded and violent. This form of violence is more insidious, more difficult to confront, for it is attempting to indoctrinate Kashmiris about their past, their present and direct them to a future that does not belong to them.  They had become the objects of history rather than the masters of it.

Another serious challenge that people of Kashmir face, when attempts are made to confine the Kashmir dispute to a bilateral matter between India and Pakistan as if Kashmiris were inconsequential. This charade of sorts represents an outrageous attempt to restrict discussions of Kashmir, to India and Pakistan to the exclusion of the most important party to the conflict – the people of Kashmir.  Today, this strikingly ignorant political strategy has collapsed after the Abrogation of Article 370 & 35 A on August 5, 2019 and no longer is considered an honest initiative for resolving the Kashmir dispute. It has not achieved any of its desired objectives of bettering relations or resolving Kashmiri aspirations for self-determination. It is evident that this policy has proven a colossal failure. If, in more than 73 years, the ‘bilateral masquerade’ has produced nothing more than cheap photo opportunities, then it is better to once and for all, put this show to an end.

The world powers and the saner elements in both India and Pakistan need to realize that the bilateral talks between India and Pakistan have always remained barren. And trilateral dialogue between Governments of India, Pakistan and the leadership of Kashmir — without any precondition from any side — is the only way to resolve the issue of Kashmir once for all. Participation of Kashmiri leadership in the dialogue process is the sine qua non that will help to achieve the lasting peace and tranquility in the region of South Asia.

In fact, a ‘Kashmir Quartet’ should be established that includes Kashmir, Pakistan, China, and India. Moreover, outside intervention and mediation should include the United Nations. The chairmanship of the Kashmir Quartet mediation should be undertaken by a person of international stature, such as Kjell Bondevik former prime minister of Norway or President Mary Robinson of Ireland.

Today, the challenge before us is that a new generation in Kashmir has been raised with blood and tears for which death no longer poses a threat for what can death do that life has not done before: their suffering is freeing them from fear. Kashmiris’ fearlessness has led to the powerful protests and the largest demonstrations in recent years. The presence of hundreds of thousands of people on the streets of Srinagar, marching towards the office of the UNMOGIP, is a proof that the freedom struggle is not a terroristic movement but a movement that is indigenous, spontaneous, peaceful and popular. 

Now, is the time that Mr. Antonio Guterres, the Secretary General of the United Nations brings the situation in Kashmir to the attention of the Security Council under the provision of the Article 99 of the United Nations Charter. It is here in the region of South Asia that not two but three nuclear powers have been eyeball to eyeball for the last one-year? The Article 99 authorizes the Secretary General to ‘bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security’.  If not now, then when can Article 99 be invoked to bring peace and stability to the region of South Asia.

The UN Secretary General should listen to Mr. Gross, US Ambassador to the UN who said in the Security Council on December 5, 1952, we feel that it is the role of the Security Council to assist the parties in seeking to reach agreement.

So, now is no time for complacency or temporizing.  And the chilling suffering and misery of the Kashmiri people continues every day a peaceful resolution is deferred.

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South Asia

Promoting Projects and Practices in Community Health in India

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Street scene in India, August 2020. © UNICEF/Vinay Panjwani

One of the most populated countries in the world, India has been facing problems with regard to well-being of its citizens while sustaining their developmental needs. The need for better health facilities, and developing antidotes for new kinds of pathogens and viruses have made the task more challenging. The respective governments, pharma companies, and testing labs are trying to develop safe trial mechanisms and developing safeguards for protecting the lives of vulnerable sections of society. Within India, the community health programme involves the non-governmental sector, healthcare professionals, economics aspects and social interaction through people and voluntary workers. While the health ecosystem exists, the problem has been finance, support and critical knowledge repository. India did well to address issues such as polio vaccination and creating community awareness for regular medication against tuberculosis. There is a mounting impact of chronic diseases in economic and social sectors, need for quality health services in the wake of changing demographics, and increasing life expectancy have made matters more complex.

In terms of understanding the requirements for building better resilient and health-conscious societies, it is important that the vaccines, lifesaving drugs, and medicines should be developed with certain generalised regulations which can improve the health of the society and address problems faced by people living across regions. While India is a subcontinent comprising of all geographical features, it is also a cauldron of different ethnic communities, and physical features which provides exceptional opportunities for testing and developing medicines which can cater to different physical and pathological profiles of people. Within India, one can find people with different levels of immunity. As the eating and food habits have been different, there is higher incidence of diabetes, hyper tension and cardio diseases in a cross-section of people. It has also been seen that people who are above 40-70 years of age have been more vulnerable to pandemics, and other communicable diseases. A sizeable mortality profile of people suggests that.

In this context it becomes very important that medicines which should be developed should have a better shelf life and give results which can be corroborated with testing facility, with a cross-section of people. The results have usually varied with regard to people with different eating habits and also nutrition factor. Pandemics such as COVID-19 have brought to the fore that India has better resistance mechanisms which has helped in relatively less mortality rate when these people have been infected with COVID-19. The duration of sickness because of COVID -19 has varied from five days to more than three weeks. In such certain times, it has been found that because of lack of any effective medicine or any sure shot diagnostic mechanisms the treatment has prolonged and the recovery has been slow. In terms of legal and other regulatory mechanisms, it has been found that most of the clinical trials which are done in India enroll the vulnerable  and poor people and human trials are conducted. There is a grey area of medical compensation and addressing post-tests complications from legal point of view.

For India it has become imperative to develop projects and conduct feasibility studies through government mechanisms rather than through medical companies. While projects have been undertaken to study different kind of diseases that school children and adults will be facing in the next two decades, it has been found that most of the complications will be related to teeth, eyesight, anxiety and mental well-being. However, in the case of pandemics and community health programmes it has been encouraging signs that initiatives such as creating awareness with regard to AIDS, mental well-being, depression and anxiety disorders have been fruitful and rewarding with institutionalising counselling and telephone helplines. Most of the programs have been done and supported by NGOs as well as a few voluntary organisations.

The projects and programmes which can be initiated in India should address core issues. Firstly, the incidence of non-curable diseases, depression, immunity disorders, other issues related to community transmission, and the development of proper safeguards and awareness with regard to pandemics and life-threatening diseases. Secondly, the COVID-19 has opened a Pandora’s box with regard to the incidence of diseases which impact community, and thereby also affect government health budget. Lastly, it is necessary that India will have to create medical soldiers and inform voluntary workers so that the community transmission and community health well-being should be addressed on a priority level.

As the COVID vaccine is in different trial stages, many countries are looking for testing facility in India and also conduct human trials, as legal structure in medicinal trials is still in infancy. India needs to address the issue of IPR on developing vaccines and medical history should be addressed jointly as it has been found that many western countries have been purchasing medical history of the patients living in developing Asia, providing vaccines through great testing mechanisms and subsequently using copyright laws to deny cheap medicines to the larger community.

 In this regard it is important that India should conduct research on immunity vectors of its population and develop generic drugs which can help in protecting communities from most transmissions. It is also pertinent to note that in terms of the temperature variance across India it provides unique testing opportunities in different conditions. However, there is a need for a holistic approach and therefore it is important that training and sensitisation of the personnel working in this field is of paramount importance. Initiatives related to preventive and therapeutic services is critical. Also, looking for quick alternatives would save the lives of personnel.

Just like any emergency, there is a need for rapid action medical force which can provide immediate assistance and better cognitive abilities track critical illnesses and the reasons thereof. It has been seen in the case of midwifery and associated postnatal diseases that it has worked wonders with a better equipped and knowledgeable person existing in each society for better assistance and awareness.

The critical importance of voluntary workers is that with sufficient technical assistance (which might come from government and state units) gives them confidence and also strengthens their application of knowledge for better informed public health practices and policies. Technical assistance and quick action through centralised control centre has to create the first line of defence in case of a pandemic. 

The institutes which have been working in this field are Public Health Foundation of India, Indian Institutes of Public Health and All India Institute of Hygiene & Public Health, which have been disseminating information through online workshops, seminars, and social media. They have created affiliates and sister agencies working in the field all across India. Networking of public health institutions in medical education need to address issues such as environmental health and countering new kind of diseases which are dominating.

This clearly highlights the fact there is a need for understanding pandemics, developing awareness among communities about public health, and stress on hygienic environment, conducting long term  research on emerging diseases and promoting research in tropical medicine.

India need to allocate separate fund for public health initiatives and promote exchange of medical workers with third world countries for better understanding the nuances of medical and health research. In fact, in most of the think tank meetings, public health and awareness is not listed as topics whenever Track II dialogues are held. There is also a need for better practices in public health, education, and developing health demonstration projects, barefoot nurses and doctors, strengthening an eco-system of education, training, and scholarship. Developing traditional medicine and making it easily accessible should be the bulwark against diseases. Restructuring Community Medicine/ Preventive and Social Medicine colleges which impart this kind of education in developing countries is required as the number is relatively less. Across developing world scholarship in community medicine and hospital administration is low and needs structural financial support. The data collection and diagnostics apparatus need micro management to create better response chain. COVID-19 has provided the reason for public health to be taken as a national initiative.

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