THREE CHEERS TO PRESIDENT ZARDARI – YET NOT THE WHOLE HOG

[JusticeMuzaffar]

Justice Muzaffar H. Malik(R)
Former Chief Judge Gilgit Baltistan

Gilgit Baltistan Package is quite an advance upon existing state of things for which Mr. Kaira as President’s Aide in the matter deserves to be complimented every bit, for, to be sure, he must have played the key role in its final sculpting.
Having said it, it is also keenly felt that the powers that be did not go the whole hog. Some loose ends were left unattended which though could as well be sorted out without creating significantly more ripples than what have come to the surface on the present rather inchoate reform, expected whinge or two from across the border to boot.

Obviously I have in mind the provision for provisional provincial status conspicuous in the package by its absence which however always has been the persistent refrain in people’s litany of complaints; indeed provides the very underpinning of their case against the controlling State, their unwavering filial affection for the country notwithstanding. In the present context of political sophistication I already see them to have crossed the Rubicon who will not gladly settle for anything less than that or autonomy comparable to AJK. For, they demand a substantive share in the decision-making of the affairs touching their life and not merely plitesse of form which the current reforms in the last analysis would amount to. Only people’s direct involvement where the ‘power’ rests (parliament) will put the kibosh on the ferment. This is time they are listened to with sensitivity and the ineluctable conceded. Conversely, being undecided which historically has been the hallmark of Government policy in the matter will only prove to be counterproductive at the end of the day.

I spent a lifetime doing many stints in my judicial career in direct contact with the masses and most articulate section of the civil society, lawyers. So this is my direct personal knowledge and therefore I do have some pretensions to being authentic. (I am not a native of the area). The impediments, domestic or international; political or legal that are routinely put forward as snags in the way have always escaped me despite myself. The stonewalling perpetually on display. Therefore, is explicable, to my mind, on no other hypothesis than that of multiple callosities that we on this side of the track, in sheer arrogance, have allowed to grow on our soul over the years, an extension of Nimby Syndrome, isn’t it?

Insofar as my knowledge goes these areas liberated in the year 1948 by sons of the soil and offered for accession to the State of Pakistan were left for administration in her control till such time as the issue of the disputed princely State of Jammu & Kashmir is resolved. The United Nations put its imprimatur on it. I have myself seen offers of accession by Mirs of Hunza and Nagar made during Quaid’s life. The proposal documents had M.A. Jinnah affixed on them indicating acceptance or whatever. But there is no microinstruction, as it were, for the administrative brass tacks or to activate micromanagement more than the basic mandate that the status quo in constitutional terms shall not be changed which practically would mean an embargo against integration / annexation of the territory as an integral part of the State of Pakistan. Therefore, it will not take the constitutional prowess of a Dicey or exegetic skills of a Mansfield to appreciate that there is a real wide field open before the administering State (Pakistan) presenting a variety of options to devise the administrative infrastructure in keeping with ground realities to best discharge its burden. One such option could be a provisional province for which the locals clamour uncompromisingly. The other view that the administering State has to operate in a straitjacket allowing no elbow room, in its absurdity, is not any different from tying down Plato’s ‘king philosopher’ with a Statute book or entrusting a patient to the care of a physician with a mandatory prescription in hand and holding him responsible for the patient’s health.

In my view if the territory is administered as demanded by the relevant public as a province making simultaneously an unequivocal statement of intent in the Constitution that the step is being taken only as an administrative stopgap arrangement not intended in any manner as precursory to fait accompli, I don’t discern in this violation of any international obligation or consequential hue and cry. After all what is wrong in treating a ward entrusted to one’s custody with the same paternalistic concern and with the same outward forms as one’s own child so long one does not pretend claim to its biological paternity? On the contrary, I am inclined to believe all the right thinking saner elements would rather be appreciative of it. Only inelastic wooden bureaucracy congenitally handicapped to break out of the hoop are expected to disingenuously remonstrate, thanks to whose unimaginative handling over decades the territory was virtually reduced to boondocks and its otherwise quite civilized people, as if children of a lesser God, were kept deprived of even the most basic features of modern life. Is there now any change in the Kashmir problem or Pakistan’s stand vis-à-vis the State to justify the present change, one may ask. If no, why what has been done today (empowerment) could not be done before? In it itself is self-evidenced indictment of myopic ironclad footsloggers who pass for high sounding bureaucracy. Brilliant lord Curzon Viceroy of India in the early 20th century also had the same opinion of the mandarins even of classic I.C.S vintage. Any further apathy in this direction I have no doubt in my mind is only sure-fire nostrum to inject disaffection hurting Pakistan’s long-term interests. No doubt being a responsible State it is an absolute imperative for Pakistan to keep within the parameters of its international commitments on Kashmir. But this is not the same thing as getting bogged down by hyper speculative forebodings more of the stuff of illusion raising false alarm than a rational premiss. Intriguingly, if there is one set of circumstances where “Doctrine of Necessity” (much abused, much misused) can be invoked to promote salus papuli (welfare of the people) it is the situation of constitutionally non-descript GB territory badly off for some identity. Heavens would not fall as they did not when during Zia’s martial law the area, unlike AJK, was declared Zone “E” along with other Zones consisting of all the four provinces. This hark-back to those benighted times is to show how once this territory at least inferably by design or otherwise treated as part of Pakistan. The area was given even two Observers in the Parliament and one Advisor to the PM. No swear-words went about and no daggers were drawn from any quarters. Everything remained honky dory as ever. Alarm bells now ringing out that any such step will compromise Kashmir cause I am afraid are unnecessarily alarmist if not disingenuous because by admitting the territory to short term Provincial Status, No constitutional change as such in the constituent territories of the State of Pakistan is contemplated or shall be effected. In any case it is no sound policy to play ducks and drakes with good money in the bag. Three generations are enough to drive to the edge an intensely patriotic people. One more will be one too many.

Any little tampering or modification no matter how insignificant must raise a few hackles. Mooing from across the border as expected is already there. Some feeble local voices of dissent for whom anything new is avant-garde deserving to be snuffed out on first notice are also kicking up dust which will soon settle. Such sticks-in-the-mud are better left where they belong, mud. In the circumstances one may as well be hanged for a sheep as for a lamb.

In closing a brief comment on judiciary. From reporting in the newspapers it appears that the nomenclature of Chief Court has not been changed. If so the reason for that eludes me in particular when all other designations that go with a province and could be politically sensitive have been adopted. “Chief Court” for Northern Area has always been a “High Court” complete with its constitutional jurisdiction under a different nomenclature for real or perceived political reasons. Why hang onto this distinction without a difference now when everything has undergone a change. There is another compelling reason to re-designate it as ‘High Court’: after the establishment of Supreme (Appellate) Court and alongside it another Court with the designation of Chief Court sounds rather ana-chronic since the appellation “Chief” too has the import of being “highest” or “Supreme”. And there cannot be two supremos in one realm.

Similarly “Supreme Appellate Court” having been vested some original jurisdiction as well, the middle word “appellate” in its nomenclature is inapt which it is necessary to delete to make the title truly reflective of Court’s jurisdiction.


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[SeaGull]

And where is the need of SALUS PAPULI for the 'Children of a Lessor God'

Excellent insightful treatise by the 'Learned Justice' on a much misunderstood and maligned Malaise