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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

Opposing Hindutava: US conference raises troubling questions

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Controversy over a recent ‘Dismantling Global Hindutava’ conference that targeted a politically charged expression of Hindu nationalism raises questions that go far beyond the anti-Muslim discriminatory policies of Indian Prime Minister Narendra Modi’s government and ruling party.

The conference and responses to it highlight a debilitating deterioration in the past two decades, especially since 9/11, of the standards of civility and etiquette that jeopardize civil, intelligent, and constructive debate and allow expressions of racist, Islamophobic and anti-Semitic attitudes to become mainstream.

Organizers of the conference that was co-sponsored by 53 American universities, including Harvard, Stanford, Princeton, Columbia, Berkeley, University of Chicago, University of Pennsylvania and Rutgers, insisted that they distinguish between Hinduism and Hindutava, Mr. Modi’s notion of Hindu nationalism that enables discrimination against and attacks on India’s 200 million Muslims.

The distinction failed to impress critics who accused the organizers of Hinduphobia. Some critics charged that the framing of the conference demonstrated a pervasiveness of groupthink in academia and an unwillingness to tackle similar phenomena in other major religions, particularly Islam.

The campaign against the conference appeared to have been organized predominantly by organizations in the United States with links to militant right-wing Hindu nationalist groups in India, including some with a history of violence. The conference’s most militant critics threatened violence against conference speakers and their families, prompting some participants to withdraw from the event.

Opponents of political Islam noted that Western academia has not organized a similar conference about the politicization of the faith even though powerful states like the United Arab Emirates, Saudi Arabia, and Egypt have lobbied Western capitals against the Muslim Brotherhood and its Turkish and Qatari supporters with notable successes in France, Austria, Belgium and Britain.

Academia was likely to have been hesitant to tackle political Islam because Islamophobia is far more prevalent than Hinduphobia.

Moreover, perceptions of political Islam, are far more complex and convoluted. Islam is frequently conflated with political expressions and interpretations of the faith run a gamut from supremacist and conservative to more liberal and tolerant. They also lump together groups that adhere and respect the election process and ones that advocate violent jihad.

Scholars and analysts declared an end to political Islam’s heyday with the military coup in Egypt in 2013 that toppled Mohammed Morsi, a Muslim Brother, who was elected president in Egypt’s first and only free and fair poll. Political Islam’s alleged swansong loomed even larger with this year’s setbacks for two of the most moderate Islamist political parties in Tunisia and Morocco as well as hints that Turkey may restrict activities of Islamists operating in exile from Istanbul.

A more fundamental criticism of the framing of the Hindutava conference is its failure to put Hindutava in a broader context.

That context involves the undermining of the social cohesion of societies made up of collections of diverse ethnic and religious communities since Osama bin Laden’s 9/11 attacks on New York and Washington.

The attacks fueled the rise of ultra-nationalism and politicized expressions of religious ultra-conservatism not only in the Hindu world but also in the worlds of other major religions.

These include politicized ultra-conservative Islam, politicized Evangelism and Buddhist nationalism. Right-wing religious nationalism in Israel, unlike Islamism and politicized Evangelism, is shaped by ultra-nationalism rather than religious ultra-conservatism.

The worlds of religious ultra-nationalism and politicized expressions of religious ultra-conservatism are often mutually reinforcing.

Scholar Cynthia Miller-Idriss’s assessment of the impact of Al-Qaeda’s 9/11 attacks on the United States is equally true for India or Europe.

“In the wake of the 9/11 attacks, the rise of violent jihadism reshaped American politics in ways that created fertile ground for right-wing extremism. The attacks were a gift to peddlers of xenophobia, white supremacism, and Christian nationalism: as dark-skinned Muslim foreigners bent on murdering Americans, Al-Qaeda terrorists and their ilk seemed to have stepped out of a far-right fever dream,” Ms. Miller-Idriss said.

“Almost overnight, the United States and European countries abounded with precisely the fears that the far-right had been trying to stoke for decades,” she added.

The comparison of politically charged militant nationalist and ultra-conservative expressions of diverse religions takes on added significance in a world that has seen the emergence of civilizationalist leaders.

Scholar Sumantra Bose attributes the rise of religious nationalism in non-Western states like Turkey and India to the fact that they never adopted the Western principle of separation of state and church.

Instead, they based their secularism on the principle of state intervention and regulation of the religious sphere. As a result, the rejection of secularism in Turkey and India fits a global trend that conflates a dominant religious identity with national identity.

Sarah Kamali, the author of a recently published book that compares militant white nationalists to militant Islamists in the United States, notes similar patterns while drawing parallels between far-right xenophobes and militant Islamists.

Militant Islamists’ “sense of victimhood […] is similar to that of their White nationalist counterparts in that [it] is constructed and exploited to justify their violence… Both mutually – and exclusively – target America for the purpose of claiming the nation as theirs and theirs alone, either as a White ethno-state or as part of a global caliphate,” Ms. Kamali writes.

Similarly, the Taliban defeat of a superpower energized militant Islamists, as well as proponents of Hindutava, with Islamophobic narratives spun by Mr. Modi’s followers gaining new fodder with the assertion that India was being encircled by Muslim states hosting religious extremists.

Modi is essentially helping the recruitment of…jihadist groups by taking such a hard, repressive line against the Islamic community in India, who are now being forced to see themselves being repressed,” said Douglas London, the CIA’s counter-terrorism chief for South and South-West Asia until 2019.

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South Asia

Panjshir – the last stronghold of democracy in Afghanistan

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The Taliban’s rapid advance in Afghanistan has briefly stalled only in the face of strong resistance mounted by the people of the country’s recalcitrant mountainous province of Panjshir. Whoever controls the region’s passes controls the routes leading to China and Tajikistan, but to seize this mountain valley and, most importantly, to keep it permanently under control has always been a problem for all invaders. Eager to let the international community see for the first time in 40 years a united Afghanistan as a sign of their final victory, the radical Islamists were prepared to make any sacrifices, including filling the approaches to the Panjshir Valley up with dead bodies. Moreover, the Taliban’s longtime ally Pakistan, which, regardless of its status of an ally of the United States, has provided them with direct military support. In fact, Islamabad admitted its less than successful role when it proposed signing a truce to find and take out the bodies of its special Ops forces who had died during the attack on the valley. However, drones flown by Pakistani operators, professional commandos (possibly once trained by the Americans), air support and other pleasant gifts from the allies eventually bore fruit letting the Taliban be photographed in front of the mausoleum of Ahmad Shah Massoud Sr., the famous “Lion of Panjshir,” who controlled the valley from 1996 to 2001. The Islamists also took control of the province’s central city of Bazarak.

Having deprived the province much of its Internet access, the radicals, who control most of the Afghan territory, found it easier to wage an information war. Their claims of victories were now more difficult to contest, even though information about their retreat did reach the outside world. Reflective of the heavy losses suffered for the first time by the Taliban and their allies – the Haqqani Network and other remnants of al-Qaeda, as well as by the regular Pakistani army is the brief truce arranged by Islamabad. Looks like the mountain passes leading to Panjshir were literally filled up with corpses…

As for Massoud Jr., the young lion of Panjshir, and his supporters, they retreated to the mountains. In fact, they had nowhere to fall back to. The problem of Afghanistan is its ethnic diversity. Thus, the country is home to 23 percent of ethnic Tajiks, most of whom live in the Panjshir Valley. However, the Taliban rely mainly on the Pashtuns, who account for over 50 percent of the country’s population. As for the new masters of Afghanistan, they are ready to carry out ethnic cleansings and even commit outright genocide in order to bring the valley into submission. To make this happen they are going to resettle there their fellow Pashtun tribesmen. Local men aged between 12 and 50 are already being taken away and, according to the National Resistance Front, no one has seen them again. However, due to the information blockade, the Taliban will not hesitate to refute such facts. One thing is clear: Massoud’s Tajik fighters and the government troops that joined them are fighting for their lives, and there will be no honorable surrender!

The main question now is whether the young lion of Panjshir will receive the same support as his father once did, or will find himself without ammunition and food. After all, the Taliban leaders have reached certain agreements with the United States. Suffice it to mention the numerous remarks made, among others, by President Biden himself about the Taliban now being different from what they were 20 years ago.

But no, the Taliban`s remain the same – they have only hired new PR people. Meanwhile, hating to admit their defeat, Brussels and Washington will have to engage in a dialogue with those who are responsible for the tragedy of September 11, 2001, and for the numerous terrorist attacks in Europe. The Taliban are pretending to make minor cosmetic concessions. Minor indeed, since they are still depriving women of the opportunity to work and study, destroying higher and secondary education and brutally clamping down on people who simply do not want to live according to religious norms.

The United States is actually helping the “new-look” Taliban. Their potential opponents, including the famous Marshal Dostum, an ethnic Uzbek, left the country under various guarantees, and Washington is trying to keep them from any further participation in the conflict. Democratic politicians naively believe that by creating an Islamic state and ending the protracted civil war in Afghanistan the Taliban will ensure stability in the region and will not move any further. Uzbekistan and Tajikistan do not think so and are strengthening their borders and preparing to protect their Afghan compatriots, because they know full well that the Taliban`s are not a national political party; they are a radical Islamist ideology.

It knows no borders and spreads like a cancerous tumor, destroying all pockets of Western culture. It can only be stopped by force. However, the two decades of US military presence in Afghanistan showed that Washington, which quickly took control of the country in 2001, simply had no strategy to keep it. The Afghans were given nothing that would appear to them more attractive than the ideas of radical Islam. As a result, the few Afghans who embrace European values are fleeing the country, and those who, like Massoud Jr., decided to fight for their freedom, now risk being left to face their enemy all by themselves.

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South Asia

Misjudgements in India’s Afghan policy

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India’s Afghan policy has always been obsessed with the desire to deny Pakistan the “strategic depth” that Pakistan, according to India’s perception, yearns. If India had a pragmatic policy, it would not have found itself whimpering and whining like a rueful baby over spilt milk.

India supported the invasion of Afghanistan by both the former Soviet Union and the USA, both losers. President Trump mocked Modi for having built a library for the Afghan people. Trump expected India to contribute foot soldiers, and by corollary, body packs to the Afghan crisis. India played all the tricks up its sleeves to convince the USA to make India a party to the US-Taliban talks. But the USA ditched not only Modi but also Ashraf Ghani to sign the Doha peace deal with the Taliban.

India’s external affairs minister still calls the Taliban government “a dispensation”. Interestingly, the USA has reluctantly accepted that the Taliban government is a de facto government.

Humanitarian crisis

The United Nations’ Development Programme has portrayed a bleak situation in Afghanistan. Afghanistan is faced with multifarious challenges. These include prolonged drought and the effects of the COVID-19 pandemic, upheaval caused by the current political transition: frozen foreign reserves, and rising poverty.

About 47 per cent of its people live below the dollar-a-day poverty line. If the poverty line is pushed to $2 a day, 90 per cent of Afghans would be poor. About 55 per cent of Afghans are illiterate.

Ninety seven percent of the population is at risk of sinking below the poverty line, As such, Afghanistan teeters on the brink of universal poverty. Half of the population is already in need of humanitarian support. The UNDP has proposed to access the most vulnerable nine million people by focusing on essential services, local livelihoods, basic income and small infrastructure.

Currently, the gross national product of Afghanistan is around $190 billion, just a little more than the $160 billion economy of Dhaka city. The country’s legal exports of goods and services every year account for $1 billion. It imports$6 billion worth of goods and services every year.

About 80 per cent of world production of opium comes from Afghanistan. Every year, Afghanistan produces nearly 10,000 tons of opium and the revenue generated from it amounts to $7 billion approximately. About 87 per cent of the income of opium producing farmers comes exclusively from this single product. The illicit opium export by Afghanistan is worth $2 billion every year. The role of opium is significant.

About 80 per cent of public expenditure in this country is funded by grants. Since 2002, the World Bank has provided Afghanistan with a total of $5.3 billion as development and emergency relief assistance. The IMF earmarked for Afghanistan $400 million in Special Drawing Rights (SDR) for combating the Covid-19 pandemic in the country.

The United States has frozen about $10 billion worth of Afghan assets held at various banks in Afghanistan. The International Monetary Fund (IMF) has withdrawn the $400 million worth of SDRs allocated earlier to Afghanistan for addressing the Covid-19 crisis. The World Bank has not said anything as of yet, but it may also put restrictions on its funding to Afghanistan.

India’s lip service to Afghanistan

India provided around $3 billion in aid to fallen U.S.-backed Afghan government.  It trained the Afghan army and police. But now it is not willing to pay or pledge a penny to the Taliban government. Look at the following Times of India report:

“India did not pledge any money to the Taliban ruled Afghanistan probably for the first time in 20 years. That it has not done so as Jaishanker declared … (At UN, India offers support to Afghanistan but does not pledge money. The Times of India September 14, 2021).The Hindu, September 11, 2021

India’s tirade against Afghanistan

Indian policymakers and experts say they see no guarantees that Afghanistan won’t become a haven for militants. “Afghanistan may be poised to become a bottomless hole for all shades of radical, extremist and jihadi outfits somewhat similar to Iraq and Syria, only closer to India,” said Gautam Mukhopadhaya, who was India’s ambassador in Kabul between 2010 to 2013.  He added that the Taliban victory could have an “inspirational effect” not only for Kashmir’s rebels but wherever religiously-driven groups operate in the broader region… Lt. Gen Deependra Singh Hooda, former military commander for northern India between 2014-2016, said militant groups based across the border in Pakistan would “certainly try and push men” into Kashmir, following the Taliban victory in Afghanistan  (With Taliban’s rise, India sees renewed threat in Kashmir, Star Tribune September 14, 2021). “Meanwhile, Rajnath Singh conveyed to Australian Defence Minister Peter Dutton that the rise of the Taliban raises serious security concerns for India and the region. U.N. Secretary-General Antonio Guterres has appealed for an injection of cash into Afghanistan to avoid an economic meltdown that would spark a “catastrophic” situation for the Afghan people and be a “gift for terrorist groups.”). Afghan economic meltdown would be ‘gift for terrorists,’ says U.N. chief” (The Hindu, September 11, 2021)

 India’s former envoy to Kabul, Ambassador Gautam Mukhopadhyay is skeptical of the conciliatory statements by the taliban government. He advises: “We should welcome recent statements by Stanekzai and Anas Haqqani that suggest some independence from the ISI. But we should also ask some hard questions and judge them by their actions and words, and not let down our guard, both with regard to our multiple security concerns such as whether they can protect us from the Ias and ISI, sever ties with other terror groups, especially those supported by the ISI against India, deny Pakistan strategic depth, and preserve and build on our historic P2P and trade ties; and a genuinely inclusive govt in Afghanistan that accommodates the majority of Afghans who want the rights and freedoms enshrined in the 2004 Afghan Constitution or at least acceptable to the Afghan people.” (Taliban move to form govt, Naya Afghanistan brings new challenge for India, September 2, 2021).

Concluding remarks

India wants a “central role’ to be given to the UN in Afghanistan. India’s mumbo jumbo implies that Afghanistan should be made a UN protectorate. Indian media is never tired of calling the Afghan government a bunch of terrorists. They have even launched video games about it.

India needs to rethink how it can mend fences with Afghanistan that it regards a hothouse of terrorists.

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