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A chance to reform

Monitor News Bureau

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In times of deep institutional crisis the invocation of moral conscience, a reminder that posterity will adversely judge those who sold their souls is, on the face of it, an important and courageous gesture. Four Supreme Court Justices, with formidable reputations, have taken the unprecedented step of going public with their disquiet about the chief justice. They have confirmed that the Supreme Court is facing a serious crisis of legitimacy. Their concerns deserve serious attention. If handled well, this could be a moment for the regeneration of the Court. But Indian institutions are also replete with examples where self-validating moral consciences quickly descend into a grammar of anarchy. The challenge will be to ensure that this does not happen.

This case is particularly tricky because of the nature of the charge. The core issue in this instance is that the justices have lost confidence in the chief justice, Dipak Misra. They are alleging grave misconduct on his part. In that sense, the allegations are personal. Long-standing structural issues relating to the power of chief justices, Memorandum of Procedure, appointments, etc are in the backdrop of this case. The Court has been acting arbitrarily in a lot of cases. This crisis has been built up over a number of years with the complicity of a large number of justices. But this case is not about these issues. The judges can institutionally advocate reform. Some of the individuals will also, as future chief justices, have opportunities to initiate reform. Debate or advocacy over judicial reform does not require this kind of a public accusation. The core issue in this instance is the conduct of this particular chief justice.

 

This column is no fan of the chief justice. But we have to carefully parse out the issues. The core claim seems to be the chief justice has departed from convention and seems to be allocating cases in ways his colleagues find objectionable. But the gravity of this charge comes from two implications. First, that this is not just a departure from convention but an attempt to fix cases or manipulate the outcome, perhaps in politically sensitive cases.

The charges are serious only for this reason. Otherwise, the most you can accuse the chief justice of is lack of administrative skills and lack of judgement when it comes to handling processes. These are not trivial matters. But if it were merely these matters, they could have held their noses for a bit. It is only when you think that the stench of wrong doing is so overwhelming that you go public.

The second implication is that those judges to whom cases are being assigned will also somehow, at least in the chief justice’s mind, be amenable to being fixed. So the issue is not just four justices versus the chief justice. The issue is four justices questioning not just the integrity of the chief justice, but also by implication, of their colleagues. We are disposed to believe the truth of these accusations because there is a distrust in the integrity of the Court (like there was distrust of politicians).

But two difficulties arise. How do we adjudicate this core accusation? The charge is serious. For all we know, it may very well be true. But do we have justiciable evidence? The charge is so serious, that if there is evidence, it warrants formal proceedings against the chief justice. If any political party has evidence that the chief justice has exercised his discretion to “fix” cases, they should initiate impeachment proceedings. And the judges who went public will have to be material witnesses.

On the other hand, if the charge does not rise to this level of seriousness, or there is no justiciable evidence, then is it right to accuse the chief justice of wrongdoing publicly? The justiciable standard may be too high, but it is the only one that can apply when such a grave accusation is made. Or else you have the grammar of anarchy. It is alarming when legal luminaries from judges to lawyers, now use hearsay to pronounce guilt or innocence. Or the entire discourse has become about inferring motives. Poor Justice Karnan must be wondering why his more direct accusations against judges invited contempt.

There is no half-way house when it comes to guilt or innocence. The judge’s press conference, and the artfully evasive letter, seem to suggest there is. But now that they have gone public, they have to follow through on the seriousness of the charge; otherwise this is just pressure tactics. It is dangerous pressure tactics because one implication will be that any “pro-government” decision on a bench allotted by the chief justice, will now have the imprimatur of doubt over it.

But the question is who will do the adjudication of the chief justice’s guilt? There is now no way of avoiding this question. The second dilemma is this. It is a good thing that everyone talking about institutional reform. Some, like a little more formalisation of the powers of the chief justice, are good things.

But given the nature of the accusation, those reforms are not what is at stake here. What is at stake is: How do you punish an errant chief justice? The Constitution secured the independence of the judiciary by making it nearly impossible to act against judges. The question is: Do you want to lower that protection? On the one hand, the implicit claim is that, as it is, the government is finding it easy to influence the judiciary.

Will giving the government more role in appointing judges or disciplining them weaken or strengthen judicial independence? So the dilemma will be this. The judiciary’s spectacular own-goal will increase calls for new mechanisms of accountability. But will those new mechanisms weaken or strengthen judicial independence? The political thrust of the current crisis and the punitive mood within the judiciary will increase the likelihood of reform that will threaten independence.

Can the judiciary recover? If Dipak Misra, as an act of statesmanship, addresses the fact that he has lost the confidence of the collegium and finds ways to recover it, perhaps. But this is unlikely. Taking charges the logical conclusion will be difficult. If they don’t follow through, then the whole drama becomes a saga of pressure tactics, intrigue and innuendo. The future does not look good. The usual Indian solution will be to sit out the crisis. The only silver lining is that in a year with so many important cases, the judiciary can redeem itself by the cogency of its reasoning and display its integrity.

(Courtesy: Indian Express)


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Opinion

Balakot strike: just for bragging rights?

The Kashmir Monitor

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By Manini Chatterjee

We, the people of India, must collectively thank NarendraModi, the chief campaigner of the BharatiyaJanata Party, for making it clear to us why NarendraModi, the prime minister of the country, ordered the air strikes on Balakot deep inside Pakistan in the last week of February.

The ostensible reason for the air strikes was to avenge the massacre that took place in Kashmir’s Pulwama on February 14, which left 40 uniformed personnel of the CRPF dead. The deaths were not a result of an encounter between security forces and militants that have long become routine in the Kashmir Valley. They happened when a lone Kashmiri youth, allegedly belonging to the Pakistan-based terrorist group Jaish-e-Mohammad, rammed his vehicle — laden with over 300 kilograms of explosives — into a CRPF convoy inching its way along the highway.

 

Less than two weeks later, we woke up to the news that Indian Air Force jets had struck the biggest training camp of the JeM in Balakot. The government officially claimed that “a very large number of JeM terrorists, trainers, senior commanders and groups of jihadis who were being trained for fidayeen action were eliminated.” The unofficial claims, conveyed to the media by “sources”, went further: 325 terrorists and 25 commanders had been killed in the strike. Pakistan had been taught a lesson it would not forget. The “New India” under the muscular leadership of NarendraModi would enter the country and take out the terrorists at will if they dared attack India again.

The rhetoric was so powerful and the hyper-nationalist cheering in the media so shrill that no one dared ask for evidence. But when one or two intrepid skeptics did wonder what exactly was achieved at Balakot, the ruling party and its army of supporters became menacing. Anyone who dared asked for proof was talking the language of Pakistan; was questioning the valour of the armed forces; was guilty of sedition and treason.

With the election campaign now under way, the Balakot strikes are becoming a central theme of the ruling party. Even though the Opposition has steered clear of national security issues and focused on jobs, farm distress and broken promises, the BJP is repeatedly bringing Balakot to the fore — and muddying the narrative even more.

Take, for instance, a recent interview given by the prime minister to an English TV channel. Asked whether he would eventually give proof that hundreds of terrorists had been killed in the strike, Modi retorted: “As far as proof is concerned, Pakistan itself has given proof. Why should they wake up at 5 a.m. and tweet? We were quiet. It is not as if the Indian government claimed the attacks first.”

That was a clever answer — but it was too clever by half. It is true that it was Pakistan’s director-general of the Inter-Services Public Relations, Major General Asif Ghafoor, who first tweeted that the Indian Air Force had “violated Line of Control”. But Pakistan also claimed that the Indian jets “released payloads in haste” and there were “no casualties or damage”.

By citing Pakistan’s tweet as proof of the success of the air strike, Modi has — embarrassingly for the country — brought attention to Pakistan’s version as a whole.
More embarrassing has been Pakistan’s subsequent response. If India wanted to teach Pakistan a lesson and left the country with a bloody nose, Islamabad’s response has been very curious indeed.

In a recent chat with foreign correspondents, Pakistan’s prime minister, Imran Khan, appeared to take the whole Balakot offensive much too lightly. According to The New York Times report on the chat, Imran Khan said that on learning that the Indian bombs had fallen into an empty ravine near Balakot, Pakistan opted for “a measured response and bombed an empty area just across the Indian border.” It went on to quote Imran Khan as saying: “They hit our trees; so we thought we’d hit their stones.”
Imran Khan went further — batting for the return of NarendraModi to power and seeing it as the best possible option of settling the Kashmir conflict. If Balakot was a slap on the face of Pakistan, it is baffling — to put it mildly — why the country’s prime minister should want another term for his hostile counterpart across the border.

But with each passing day that mystery is receding; with every BJP speech, it is becoming clearer that the Indian forces were made to strike Balakot not to teach Pakistan a lesson but to provide bragging rights to NarendraModi as a saviour of the nation and provide him a handy tool for his re-election bid.

If NarendraModi was indeed the supreme patriot that he claims to be and if he truly valued the courage and competence of our armed forces, he should have been the first person to reprimand the Uttar Pradesh chief minister, Yogi Adityanath, for referring to India’s professional army as “Modijikisena”. He did nothing of the kind — his silence serving as encouragement to other BJP leaders who repeated the epithet before the Election Commission, belatedly, stepped in.

In fact, he went further than his acolytes. In a speech that shocked retired and serving members of the defence services, NarendraModi asked first-time voters “to dedicate” their first vote to the “valiant soldiers who carried out the air strike in Pakistan’s Balakot” and to the “brave martyrs of Pulwama.” Never before has any Indian leader so brazenly sought to politicize the military for electoral gains.

Perhaps Modi was addressing his appeal to first-time voters because he is confident that the youth — subjected to the relentless propaganda of the last five years — have no knowledge of history and will be easily swayed by claims that Modi has achieved what no other Indian leader has in the past 70 years.

But not every Indian is a first-time voter. And even first time voters have parents and grandparents, teachers and tutors, people around them with longer memories. And many of them will still remember the grit and the glory of 1971 — the only time India decisively won a war. They will also recall that in complete contrast to the faux war-mongering of today, the prime minister of that time showed a grace and courage that was so much more powerful since it was entirely bereft of bombast.

Some BJP apologists, defending Modi’s electoral use of Balakot, erroneously claim that Indira Gandhi too capitalized on the 1971 victory to win by a landslide in the elections that year. The truth, though, is that India won the war after, not before, the elections.

Mrs Gandhi won her famous “GaribiHatao” election in March 1971, a couple of weeks before the Pakistan army went on a brutal rampage in what was then East Pakistan. In the following months, there was a massive influx of East Pakistanis into India. We may have been a lot poorer back then but unlike today we kept our borders — and our hearts — open to those fleeing genocide. More than 10 million refugees found shelter in India.

Indira Gandhi went across the world, campaigning against the suppression of democracy by West Pakistan in its eastern wing and the mass killings and rapes that followed. The American president, Richard Nixon, was famously hostile to her and blatantly backed Pakistan. But Mrs Gandhi combined diplomatic outreach with a quiet military preparation — executed by able military men untrammelled by considerations of electoral expediency — that eventually resulted in unequivocal victory. On December 16, 1971, less than two weeks after Pakistan bombed Indian air bases, its commander in Dhaka, Lieutenant-General A.A.K. Niazi, signed the instrument of surrender in Dhaka before Lieutenant-General J.S. Aurora of the Indian Army. No proof of India’s achievement was needed. No claims were made.

Two days later, Mrs Gandhi’s victory speech in the LokSabha was equally shorn of rhetoric. It lasted barely a minute. “All the world,” she said, “admires a deed well done. And I think, with all modesty, we can say that we have done this action well.” India’s most successful war prime minister went on to say: “But let us not forget that the road ahead is still long and very steep and we have many peaks to scale. Let us hope that we can do this with the same spirit in which we have faced this challenge. And that we will go ahead from peak to peak raising our nation to new heights of quality and of excellence…”

Watch that speech on YouTube. Even first-time voters will be able to tell the difference between the élan of true victory and its 56-inch, tawdry alternative…

(The Telegraph, Kolkata)

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Opinion

Don’t blame Sharia for Islamic extremism – blame colonialism

The Kashmir Monitor

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By Mark Fathi

Warning that Islamic extremists want to impose fundamentalist religious rule in American communities, right-wing lawmakers in dozens of U.S. states have tried banning Sharia, an Arabic term often understood to mean Islamic law.

These political debates – which cite terrorism and political violence in the Middle East to argue that Islam is incompatible with modern society – reinforce stereotypes that the Muslim world is uncivilized.

 

They also reflect ignorance of Sharia, which is not a strict legal code. Sharia means “path” or “way”: It is a broad set of values and ethical principles drawn from the Quran – Islam’s holy book – and the life of the Prophet Muhammad. As such, different people and governments may interpret Sharia differently.

Still, this is not the first time that the world has tried to figure out where Sharia fits into the global order.

In the 1950s and 1960s, when Great Britain, France and other European powers relinquished their colonies in the Middle East, Africa and Asia, leaders of newly sovereign Muslim-majority countries faced a decision of enormous consequence: Should they build their governments on Islamic religious values or embrace the European laws inherited from colonial rule?

Invariably, my historical research shows, political leaders of these young countries chose to keep their colonial justice systems rather than impose religious law.

Newly independent Sudan, Nigeria, Pakistan and Somalia, among other places, all confined the application of Sharia to marital and inheritance disputes within Muslim families, just as their colonial administrators had done. The remainder of their legal systems would continue to be based on European law.

France, Italy and the United Kingdom imposed their legal systems onto Muslim-majority territories they colonized. CIA Norman B. Leventhal Map Center, CC BY
To understand why they chose this course, I researched the decision-making process in Sudan, the first sub-Saharan African country to gain independence from the British, in 1956.

In the national archives and libraries of the Sudanese capital Khartoum, and in interviews with Sudanese lawyers and officials, I discovered that leading judges, politicians and intellectuals actually pushed for Sudan to become a democratic Islamic state.

They envisioned a progressive legal system consistent with Islamic faith principles, one where all citizens – irrespective of religion, race or ethnicity – could practice their religious beliefs freely and openly.

“The People are equal like the teeth of a comb,” wrote Sudan’s soon-to-be Supreme Court Justice Hassan Muddathir in 1956, quoting the Prophet Muhammad, in an official memorandum I found archived in Khartoum’s Sudan Library. “An Arab is no better than a Persian, and the White is no better than the Black.”

Sudan’s post-colonial leadership, however, rejected those calls. They chose to keep the English common law tradition as the law of the land.

Why keep the laws of the oppressor?

My research identifies three reasons why early Sudan sidelined Sharia: politics, pragmatism and demography.

Rivalries between political parties in post-colonial Sudan led to parliamentary stalemate, which made it difficult to pass meaningful legislation. So Sudan simply maintained the colonial laws already on the books.

There were practical reasons for maintaining English common law, too.

Sudanese judges had been trained by British colonial officials. So they continued to apply English common law principles to the disputes they heard in their courtrooms.

Sudan’s founding fathers faced urgent challenges, such as creating the economy, establishing foreign trade and ending civil war. They felt it was simply not sensible to overhaul the rather smooth-running governance system in Khartoum.

The continued use of colonial law after independence also reflected Sudan’s ethnic, linguistic and religious diversity.

Then, as now, Sudanese citizens spoke many languages and belonged to dozens of ethnic groups. At the time of Sudan’s independence, people practicing Sunni and Sufi traditions of Islam lived largely in northern Sudan. Christianity was an important faith in southern Sudan.

Sudan’s diversity of faith communities meant that maintaining a foreign legal system – English common law – was less controversial than choosing whose version of Sharia to adopt.

My research uncovers how today’s instability across the Middle East and North Africa is, in part, a consequence of these post-colonial decisions to reject Sharia.

In maintaining colonial legal systems, Sudan and other Muslim-majority countries that followed a similar path appeased Western world powers, which were pushing their former colonies toward secularism.

But they avoided resolving tough questions about religious identity and the law. That created a disconnect between the people and their governments.

In the long run, that disconnect helped fuel unrest among some citizens of deep faith, leading to sectarian calls to unite religion and the state once and for all. In Iran, Saudi Arabia and parts of Somalia and Nigeria, these interpretations triumphed, imposing extremist versions of Sharia over millions of people.

In other words, Muslim-majority countries stunted the democratic potential of Sharia by rejecting it as a mainstream legal concept in the 1950s and 1960s, leaving Sharia in the hands of extremists.

But there is no inherent tension between Sharia, human rights and the rule of law. Like any use of religion in politics, Sharia’s application depends on who is using it – and why.

Leaders of places like Saudi Arabia and Brunei have chosen to restrict women’s freedom and minority rights. But many scholars of Islam and grassroots organizations interpret Sharia as a flexible, rights-oriented and equality-minded ethical order.

Religion is woven into the legal fabric of many post-colonial nations, with varying consequences for democracy and stability.

After its 1948 founding, Israel debated the role of Jewish law in Israeli society. Ultimately, Prime Minister David Ben-Gurion and his allies opted for a mixed legal system that combined Jewish law with English common law.

In Latin America, the Catholicism imposed by Spanish conquistadors underpins laws restricting abortion, divorce and gay rights.

And throughout the 19th century, judges in the U.S. regularly invoked the legal maxim that “Christianity is part of the common law.” Legislators still routinely invoke their Christian faith when supporting or opposing a given law.

Political extremism and human rights abuses that occur in those places are rarely understood as inherent flaws of these religions.

When it comes to Muslim-majority countries, however, Sharia takes the blame for regressive laws – not the people who pass those policies in the name of religion.

Fundamentalism and violence, in other words, are a post-colonial problem – not a religious inevitability.

For the Muslim world, finding a system of government that reflects Islamic values while promoting democracy will not be easy after more than 50 years of failed secular rule. But building peace may demand it.

(theprint.in)

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The Assange Arrest is a Warning from History

The Kashmir Monitor

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By John Pilger

The glimpse of Julian Assange being dragged from the Ecuadorean embassy in London is an emblem of the times. Might against right. Muscle against the law. Indecency against courage. Six policemen manhandled a sick journalist, his eyes wincing against his first natural light in almost seven years.

That this outrage happened in the heart of London, in the land of Magna Carta, ought to shame and anger all who fear for “democratic” societies. Assange is a political refugee protected by international law, the recipient of asylum under a strict covenant to which Britain is a signatory. The United Nations made this clear in the legal ruling of its Working Party on Arbitrary Detention.

 

But to hell with that. Let the thugs go in. Directed by the quasi fascists in Trump’s Washington, in league with Ecuador’s Lenin Moreno, a Latin American Judas and liar seeking to disguise his rancid regime, the British elite abandoned its last imperial myth: that of fairness and justice.

Imagine Tony Blair dragged from his multi-million pound Georgian home in Connaught Square, London, in handcuffs, for onward dispatch to the dock in The Hague. By the standard of Nuremberg, Blair’s “paramount crime” is the deaths of a million Iraqis. Assange’s crime is journalism: holding the rapacious to account, exposing their lies and empowering people all over the world with truth.

The shocking arrest of Assange carries a warning for all who, as Oscar Wilde wrote, “sow the seeds of discontent [without which] there would be no advance towards civilisation”. The warning is explicit towards journalists. What happened to the founder and editor of WikiLeaks can happen to you on a newspaper, you in a TV studio, you on radio, you running a podcast.

Assange’s principal media tormentor, the Guardian, a collaborator with the secret state, displayed its nervousness this week with an editorial that scaled new weasel heights. The Guardian has exploited the work of Assange and WikiLeaks in what its previous editor called “the greatest scoop of the last 30 years”. The paper creamed off WikiLeaks’ revelations and claimed the accolades and riches that came with them.

With not a penny going to Julian Assange or to WikiLeaks, a hyped Guardian book led to a lucrative Hollywood movie. The book’s authors, Luke Harding and David Leigh, turned on their source, abused him and disclosed the secret password Assange had given the paper in confidence, which was designed to protect a digital file containing leaked US embassy cables.

With Assange now trapped in the Ecuadorean embassy, Harding joined the police outside and gloated on his blog that “Scotland Yard may get the last laugh”. The Guardian has since published a series of falsehoods about Assange, not least a discredited claim that a group of Russians and Trump’s man, Paul Manafort, had visited Assange in the embassy. The meetings never happened; it was fake.

But the tone has now changed. “The Assange case is a morally tangled web,” the paper opined. “He (Assange) believes in publishing things that should not be published…. But he has always shone a light on things that should never have been hidden.”

These “things” are the truth about the homicidal way America conducts its colonial wars, the lies of the British Foreign Office in its denial of rights to vulnerable people, such as the Chagos Islanders, the expose of Hillary Clinton as a backer and beneficiary of jihadism in the Middle East, the detailed description of American ambassadors of how the governments in Syria and Venezuela might be overthrown, and much more. It all available on the WikiLeaks site.

The Guardian is understandably nervous. Secret policemen have already visited the newspaper and demanded and got the ritual destruction of a hard drive. On this, the paper has form. In 1983, a Foreign Office clerk, Sarah Tisdall, leaked British Government documents showing when American cruise nuclear weapons would arrive in Europe. The Guardian was showered with praise.

When a court order demanded to know the source, instead of the editor going to prison on a fundamental principle of protecting a source, Tisdall was betrayed, prosecuted and served six months.

If Assange is extradited to America for publishing what the Guardian calls truthful “things”, what is to stop the current editor, Katherine Viner, following him, or the previous editor, Alan Rusbridger, or the prolific propagandist Luke Harding?

What is to stop the editors of the New York Times and the Washington Post, who also published morsels of the truth that originated with WikiLeaks, and the editor of El Pais in Spain, and Der Spiegel in Germany and the Sydney Morning Herald in Australia. The list is long.

David McCraw, lead lawyer of the New York Times, wrote: “I think the prosecution [of Assange] would be a very, very bad precedent for publishers… from everything I know, he’s sort of in a classic publisher’s position and the law would have a very hard time distinguishing between the New York Times and WilLeaks.”

Even if journalists who published WikiLeaks’ leaks are not summoned by an American grand jury, the intimidation of Julian Assange and Chelsea Manning will be enough. Real journalism is being criminalised by thugs in plain sight. Dissent has become an indulgence.

In Australia, the current America-besotted government is prosecuting two whistle-blowers who revealed that Canberra’s spooks bugged the cabinet meetings of the new government of East Timor for the express purpose of cheating the tiny, impoverished nation out of its proper share of the oil and gas resources in the Timor Sea. Their trial will be held in secret. The Australian prime minister, Scott Morrison, is infamous for his part in setting up concentration camps for refugees on the Pacific islands of Nauru and Manus, where children self harm and suicide. In 2014, Morrison proposed mass detention camps for 30,000 people.

Real journalism is the enemy of these disgraces. A decade ago, the Ministry of Defence in London produced a secret document which described the “principal threats” to public order as threefold: terrorists, Russian spies and investigative journalists. The latter was designated the major threat.

The document was duly leaked to WikiLeaks, which published it. “We had no choice,” Assange told me. “It’s very simple. People have a right to know and a right to question and challenge power. That’s true democracy.”

What if Assange and Manning and others in their wake – if there are others – are silenced and “the right to know and question and challenge” is taken away?
In the 1970s, I met LeniReifenstahl, close friend of Adolf Hitler, whose films helped cast the Nazi spell over Germany.

She told me that the message in her films, the propaganda, was dependent not on “orders from above” but on what she called the “submissive void” of the public.

“Did this submissive void include the liberal, educated bourgeoisie?” I asked her.

“Of course,” she said, “especially the intelligentsia…. When people no longer ask serious questions, they are submissive and malleable. Anything can happen.”
And did.

The rest, she might have added, is history.

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