Pakistan’s Constitutional mess
Dr. Liaquat Ali Khan

THE Pakistan Supreme Court has successfully created a constitutional mess that may do more harm than good. Its judicial activism and bravery in defying President Pervez Musharraf’s efforts to humiliate the judiciary and in reinstating the suspended chief justice was appreciated in legal circles throughout the world. Its exercise of suo moto jurisdiction to protect fundamental constitutional rights has also been a beacon of light for lawyers in Pakistan and other Muslim countries where state officials commit gross violations of rights with little accountability. Despite these adorable successes, the Supreme Court has begun to venture into political minefields, raising serious questions about the long-term sustainability of its judicial activism.
The Supreme Court overdoes things when it interferes with politics. Of course, rights cannot be separated from politics. And the violations of rights, which the court must monitor, are related to political forces that determine governmental policies. Yet a responsible judiciary must constantly distinguish between the calculus of rights and the dynamics of politics. The Supreme Court rests on firm ground when it intervenes in public matters to preserve constitutional rights. It treads on shaky ground, however, when it wishes to engineer political forces for the good of the country or for the greater protection of constitutional order. Engineering political forces through active judicial intervention is, and ought to be, beyond the scope of judicial authority.
Take the Oct. 6 presidential election. The Supreme Court may exercise its authority to hold whether a candidate holding two public offices, one civilian and the other military, may contest the election. This is no judicial activism. The court may also rule whether the presidential election for a five-year term ought to be held before or after general elections of the Electoral College. This is not mere politics. However, the court’s decision to split the baby between competing political forces has been most prejudicial to the nation’s stability. The Court prohibits the Election Commission from announcing the result of an otherwise validly-held election. This sort of judicial engineering that throws the future into uncertainty is anything but the protection of rights.
According to the Pakistani folk wisdom, which is sometimes superior to untested constitutional interpretations, the best time to stop the cat from drinking the milk is before he drinks the milk. No strategy is effective in squeezing the milk out of the cat’s belly. This folk wisdom dictates that it will be highly adventurous for the Supreme Court to now declare that Gen. Musharraf could not lawfully contest presidential election. Any such ruling will be harmful to the protection of rights. The time to shoo away the cat has passed.
The Supreme Court’s judicial activism is even more objectionable when it begins to sort out political competition. When it comes to politics versus politics, a responsible judiciary stays out of it. In the United States, the doctrine of political question provides useful, though imperfect, guidance for the judiciary. The doctrine clears the path for political forces to contest with each other, win, and lose. Judges may have a preferred dog in the fight. The political question doctrine, however, mandates that judges leave dogfights to dogs. Any judicial intervention to tilt the political field for or against a political party is uncalled for. The judiciary loses respect, not gains it, when it imposes its preferences on the political process.
Applying these insights, it would be appropriate for the Supreme Court not to rule on the constitutionality of the Executive Ordinance under which the Musharraf government has pardoned the alleged crimes of Benazir Bhutto. The ordinance is most certainly a seamy political transaction between two political operators, Musharraf and Benazir, who seek power and will do anything to keep it. The deal is even more repellant after Nawaz Sharif’s deportation contrary to the Supreme Court order. Despite these obvious problems, the Supreme Court must not disturb the Musharraf— Benazir political deal. By declaring the ordinance offensive to the constitution, the Supreme Court will further confuse the political scene, inviting chaos and perhaps military intervention. Let the general elections in January 2008 sort out the politics.

—Arab News

Another bottling moment
William Rees-Mogg

WHY did Gordon Brown decide to take the extraordinary Election risk, which has in fact done him so much harm? Why did he start? Why did he stop? No doubt, a large part of his motivation was pure opportunism, whatever he says.
He responded to the polls that put Labour 10 points ahead at the end of its Bournemouth Conference. When the polls turned against him, he decided not to call an early election. But what inducement led him to venture on to such treacherous ground?
The possibility of winning his own mandate as Prime Minister must have been attractive; an Election victory would have given him another five-year term; the polls at their best for Labour did suggest a significant increase in his majority. Yet there must have been a bigger political and constitutional strategy behind it all. As so often, Europe was the hidden hand in British politics.
According to a widely held constitutional doctrine, there are two acceptable ways of gaining public assent to constitutional changes, such as devolution to Scotland and Wales or the creation of a Mayor for London. One way is to hold a referendum, which the Labour Party promised on the European Constitutional Treaty in its 2005 election manifesto.
Such a referendum would have provided proper public consent. The sovereign people would have agreed a transfer of sovereignty. The difficulty was that Brown thought the sovereign people would vote against the treaty. He did not want a referendum because he thought he would lose it.
For that reason he has argued that the new Reform Treaty, though largely identical in content with the Constitutional Treaty, did not require a referendum.
This was always special pleading to get the Prime Minister out of a difficulty. It has now been largely abandoned, even by Downing Street, in the face of the report on October 9 of the European Scrutiny Committee of the House of Commons, which has a large Labour majority. The committee does its job thoroughly. The other and more common method of establishing public support for constitutional change has been to hold a General Election. It is less satisfactory, in that an Election manifesto contains many different commitments. Yet it would be binding.
If Brown had stated in an Election manifesto that he planned to sign the European Reform Treaty, subject to certain qualifications, and did not intend to hold a referendum, then, if he won the Election, he would have been entitled to ratify the treaty in Parliament. In effect, Labour would have had a 2007 manifesto that overrode the commitment of the 2005 manifesto.
Of course, all this would depend on his winning the Election. For some days the polls did suggest that Labour would win a November ballot with an increased majority. That was the moment of greatest temptation.
The polls then turned against Brown. He was locked out of a referendum because the polls showed he would lose one, and was also locked out of an Election because the polls told him he might lose that, or at best be returned with a reduced majority.
He is now left with no way in which he can demonstrate popular support for the European Reform Treaty, which does involve a substantial transfer of powers.
At the same time, Brown’s argument that a referendum is not required because the Reform Treaty is not a Constitutional Treaty is collapsing. Last week, the House of Commons European Scrutiny Committee published its latest report.
The committee found that ‘taken as a whole, the Reform Treaty produces a general framework which is substantially equivalent to the Constitutional Treaty’. Labour promised a referendum on the Constitutional Treaty; it follows logically that the Government is also committed to a referendum on the Reform Treaty, which is ‘substantially equivalent’.
That is why Downing Street has shifted its position. It no longer pretends there is any radical difference between the two treaties. It now says the Government will negotiate opt-outs, the so-called ‘red lines’, which will protect Britain from having to make unacceptable transfers of power.
The Scrutiny Committee does not share the Government’s confidence. In its report it says it is concerned that ‘the Government’s claim to safeguards’ might be overruled by the European Courts of Justice.
Last Thursday, Michael Connarty, the Labour chairman of the European Scrutiny Committee, wrote a highly significant letter to Foreign Secretary David Miliband. Connarty states: ‘The committee has a particular concern over the effectiveness of the safeguards for the UK’s position on those questions identified by the Government as “red-line issues”.’
The committee does not accept either of Brown’s two main arguments against a referendum. He is left with no argument at all.
This week Brown will be going to Lisbon to try to negotiate the ‘red-line issues’. He has already indicated he may be forced to give Britain a referendum if the other European countries do not accept his ‘red lines’. This has created some ill will.
In the dance macabre of European negotiations, the same theme has been played again and again—we have seen the plot repeated for the past 35 years. A British Prime Minister goes to a European meeting to defend a British interest. At the last minute, a concession is made. The PM returns a hero. The concession turns out to have been pre-planned and of little value. The Brussels juggernaut moves on.
Brown’s greatest difficulty in winning public support for his European policy—whatever it may prove to be—is that there has been a breakdown of public trust. That is a problem he inherited from Tony Blair.
Most British voters have lost trust in the integrity of the European Union, and of their own Government so far as its European policies are concerned. When Tory leader David Cameron asked whether anyone any longer believed what Brown said, he was not indulging in mere abuse but pointing to a regrettable but real problem.
Few people can believe Brown would not have called an Election if the polls had offered him a majority of 100. They cannot understand why he sticks by so implausible an assertion. British trust on European policy can be restored only if Brown accepts his party’s commitment to a referendum. That would also be the best way to negotiate on the Reform Treaty.
The original Constitutional Treaty represented a Euro-federalist coup d’etat in Brussels. The British still want a close economic relationship with Europe, while keeping our traditions and preferences open and liberal. The British voters were promised a referendum; they will not accept the treaty unless they get one.

—Khaleej Times


US domestic politics behind solicitude for Armenians
Gwynne Dyer

NOTHING much will happen right away. The Turkish ambassador to Washington has gone home for “consultations” after the Foreign Affairs Committee of the House of Representatives approved a bill declaring that the mass killing of Armenians in the Ottoman Empire during World War I was a genocide. But he will come back to Washington, and it will be weeks before the full House passes the bill. This will be a slow-motion disaster.
The White House tried hard to stop this bill. President George W. Bush declared that “This resolution is not the right response to these historic mass killings,” and all eight living former US secretaries of state, both Democratic and Republican, signed a joint letter to the Foreign Affairs Committee urging it not to approve the bill. But it did, by a 27-21 vote, and next month the full House will do the same: More than half the members have signed up as co-sponsors of the bill.
Bush promises that it will die in the Senate, but by then the damage will be done. The US-Turkish alliance will be gravely damaged, and American use of Turkey as a major supply line for its troops in Iraq — 70 percent of US air cargo for Iraq goes through Turkey — will be at an end. Turkey may also send its troops into northern (Kurdish) Iraq, thus destabilizing the one stable and moderately prosperous part of that country.
The United States will be the 23rd country to fall to the Armenian campaign to link the Ottoman Turkey of 90 years ago with the Nazi Germany of 60 years ago — and, by extension, to implicate the current Republic of Turkey in the crime of premeditated genocide.
Once such a law is passed, to question the Armenian take on what happened is to become the equivalent of a denier of the (Jewish) Holocaust. The Armenian desire to have their national tragedy given the same status as the Jewish Holocaust is understandable, but it is mistaken. The facts of the case are horrifying, and certainly justify calling the events in eastern Turkey in 1915-16 a genocide, but the key elements of prior intent and systematic planning that distinguish the Nazi Holocaust are absent. When I was a young graduate student in Middle Eastern history, as a translation exercise I was given the hand-written diary of a Turkish soldier who was killed during the retreat from Baghdad in 1917. “Mehmet Cavus” (Sergeant Mehmet) was a youthful village school teacher who had been called up in 1914. At first he had a safe billet guarding the Black Sea entrance to the Bosphorus, but in 1915 his unit was suddenly ordered to march east to deal with a Russian invasion and an Armenian rebellion.
And then, in the diary of this pleasant, rather naive young man, I read the phrase “iyi katliam etmistik.” Loosely translated, that means: “We really massacred them” — and he wasn’t making a sporting analogy. The diary was written in the old Ottoman rika, a version of handwritten Arabic script that never really served Turkish well, so I asked my teacher if it really said what I thought it did. “Oh yes,” he said. “Those were different times.”
That excuses nothing, but it explains much. The foolish young officers who led the Ottoman Empire into the war panicked when they realized that the Russians were invading from the east and the British were about to land somewhere on the Mediterranean coast. And just at that point, Armenian revolutionaries (Dashnaks and Hnchaks) who had been plotting with the Russians and the British to carve out an Armenian state from the wreckage of the empire launched feeble, futile revolts to assist the invaders.
The Turks responded by slaughtering many Armenians in what is now eastern Turkey and deporting the rest to Syria in long marching columns. Huge numbers were murdered along the way: At least 600,000 died, and perhaps as many as 1.5 million. It was certainly genocide, but it was not premeditated, nor was it systematic. Armenians living in other parts of the empire were largely left alone, and even in the war zone those with money to travel by rail mostly reached Syria safely.
So why is the US Congress “recognizing” the Armenian genocide, but not the rather more recent genocide of the Tutsis in Rwanda? Because there are not many voters of Tutsi descent in key Congressional districts. This is all about domestic politics: Alienating the Turks doesn’t cost much politically.
Today’s Armenian activists aren’t looking for “justice”. They want to drive the Turks into extreme reactions that will isolate them and derail the domestic changes (including a gradual public acceptance of Turkey’s responsibility for the atrocities) that are turning that country into a modern, tolerant democracy. They do not want Turkey to succeed. And Western countries are falling for it.

—Arab News