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The Judicialization of Politics in Pakistan

The Kashmir Monitor

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By K. K. Shahid

In mid-July, the Islamabad High Court (IHC), Justice Shaukat Siddiqui, asked the army chief and the Inter-Services Intelligence (ISI) chief to stop meddling in judicial affairs. By the month end, the Supreme Judicial Council had begun an investigation against Justice Siddiqui.
The Judicialization of Politics in Pakistan by Waris Husain is therefore aptly timed. It focuses on the overreach of the judiciary, keeping in mind the events of the ongoing decade, and juxtaposing it with the performance of the judiciary in the US and India.
The narrative, popularised by former Prime Minister Nawaz Sharif – not enough to win the elections last month of course – goes that the army and the judiciary collaborated to oust him and are working to undermine parliamentary supremacy. This, coupled with the aftermath of the lawyers’ movement and the undertakings of the ‘Chaudhry court,’ has brought the politicisation of the judiciary under the spotlight.
Waris Husain’s book looks into the Supreme Court as a dominant force in the country’s tripartite constitutional system and critically analyses its judicial reviews – most notably vis a vis the Parliament and the Prime Minister – since 2007. The comparisons with India and the US aren’t solely based on jurisprudence, but the development of judicial reviews in the three countries in question is scrutinised in detail, tracing the origin of the judicial systems to the colonial era. Two notable differences have been underscored with regards to comparing the American and Indian subcontinent colonies.
“First, while the American colonies were largely established and inhabited by European settlers, the Indian colony remained dominated by native groups that historically lived on the land. Second, the colonial period of rule in the American colonies was far shorter in time than British rule of India, which began in the late seventeenth century and extended up until 1947. On a spectrum of judicial activism today, the Supreme Court of Pakistan stands at one end, the United States at the other, and the Supreme Court of India takes a place somewhere in between.”
Beginning with the interventionism of the Supreme Court under Chief Justice (CJ) Chaudhry Iftikhar and culminating in the apex court’s impact on the elections last month, the book analyses the political developments in the country through the judicial lens. To begin with, it was necessary to arrive at a clear definition of the phrase, ‘judicial activism,’ despite the fact that there is general disagreement over its meaning. Waris Husain brings forth a multi-pronged definition that focuses on the court “willing to invalidate statutes,” “departing from text and precedents,” “changing public policy,” “asserting itself against an elected branch of government,” or “abusing unsupervised power.”
While contrasting the judicial progress in the three countries, the book highlights the influence of colonial courts, which were largely rejected in American colonies, but not in the Indian ones.
The influence of the British jurist, Lord Edward Coke, whose suggestion in 1610 that the courts had ‘the power to judge the parliamentary acts’ violation of natural laws, forms the heart of his theoretical influence in the judicial set-ups of all three countries.
The comparison of the constitutional structure of the countries is important – presidential in the US and a presidential-parliamentary system in India and Pakistan – even though all three countries, in theory, uphold constitutional supremacy over legislative supremacy. But with the book focusing on Pakistan, it reaffirms the socio-political factors that separate Pakistan from the other two countries, most notably the influence of the military.
How the three apex courts filter petitions is also an important discussion in the book, with the Pakistani Supreme Court’s generous use of suo motu notices narrated in detail, with the frequency of the action depending largely on the individual inclinations of the serving Chief Justice (CJ). For instance, CJ Sheikh Riaz took six suo motu cases from 2002 to 2003, while CJ Chaudhry took 123 between 2005 and 2013. Justice Chaudhry’s successors, Tassaduq Jillani and Nasirul Mulk, used the suo motu during their tenures from 2013 to 2014 less than ten times each. “While the United States Constitution limits the Supreme Court to decide “cases and controversies,” the Pakistani and Indian Supreme Courts can take up any issues relating to a fundamental right of public importance. This creates a much wider area for the courts of the Indian subcontinent to exercise judicial review.”
At the heart of The Judicialization of Politics in Pakistan is the comparison of three prominent cases in Pakistan, India and the US, where the Supreme Court dealt with the prospect of disqualifying heads of state/government and the contrasting manners in which each case was dealt with by the respective Supreme Courts.
While the top courts of India and the US exemplified restraint, Pakistan’s Supreme Court unilaterally disqualified serving premiers Yousaf Gilani and Nawaz Sharif, bypassing the parliamentary process for disqualification, which has been mandated by the Constitution. In Indira Gandhi’s case, the Indian Supreme Court of India demurred and dismissed the charges of corruption but overturned a constitutional amendment to justify emergency rule, while in President Richard Nixon’s trial, the US Supreme Court left the actual impeachment to the Congress.
“A comparison of the Gilani, Gandhi and Nixon cases demonstrates the need for Pakistan’s Supreme Court to structuralise and restrain its judicial review process, especially when it relates to the disqualification of a democratically-elected prime minister.”
Finally, the author advises the Pakistan Supreme Court to adopt a more self-restrained approach in cases pertaining to the civilian elected branches, by offering a standardised procedure which gives due consideration to Pakistan’s unique socio-political factors. The apex court is urged to amend the Supreme Court Rules, while calling for a commission to investigate changing the Rules and to establish the Justiciability Council. But the author cautions that while the move would mean the Supreme Court establishing its own institution for restraint, the Council’s creation would hinge on the CJ calling for it. “If the judiciary were to take this step itself, the often-repeated claim that any control exerted by Parliament over the Court’s exercise of judicial review endangers judicial independence could be invalidated.”

 

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Opinion

Growing crimes against women

The Kashmir Monitor

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By Aritry Das

For years India has grappled with the tag of being the ‘most dangerous country for women‘. Successive governments introduced measures, but there is increasing evidence that they don’t work – and are counter-productive. Indeed, in key Indian states, cases of sexual violence are on the rise.

The Constitution of India mandates that as a federal union of states, law and order issues remain primarily with state governments, unless there are overarching issues such as terrorism. This results in many states trying different methods to tackle growing violence against women, and creating a range of other problems rather than solutions.

 

States like Uttar Pradesh, Madhya Pradesh and Maharashtra are the top states for registered rapes and sexual assaults, according to data from the National Crime Records Bureau (NCRB), a federal body that collates statistics across states. These state governments are introducing new measures to increase women’s safety, but experts say their moves are not addressing root causes and systemic failures in India’s creaking criminal justice system.

As many as 38,947 rapes were reported in 2016, which was a rise of 12% from 2015. The number of cases reported under “sexual assault, harassment and molestation”, was 84,746 nationally. This is the second-most common crime against women after “domestic violence” cases.

When Uttar Pradesh chief minister Ajay Singh Bisht, (Yogi Adityanath) came to power in 2017, he decided to tackle the problem of women’s safety by creating the controversial ‘anti-Romeo squad’, with police roaming in civil dress to surveil public spaces to keep a check on street harassers (also known as “roadside Romeos”).

The squad was eventually disbanded. But following a spate of rapes of minors, Bisht directed the police to revive the squad with the new power to issue a warning ‘red card’ to ‘suspected harassers’. If a person is caught twice doing a similar act, he will face criminal proceedings.

The squad had earlier drawn flak after reports surfaced about them targeting and publicly shaming young men, giving moral advice to couples, while some were made to do sit-ups or had their heads shaved in public.

Vaibhav Krishna, a Senior Superintendent of Police in Noida, Uttar Pradesh, told Asia Times that police officers for 23 anti-Romeo squads were receiving gender sensitization and training programs to help them handle cases better.

The squad’s further empowerment has raised concerns. Reports of the squad “moral policing” couples and a subsequent increase in sexual violence cases indicated that the measure was not working, according to PoonamKaushik, a women’s rights activist and general secretary of PragatisheelMahilaSangathan.

In the neighboring state of Rajasthan, crimes against women under all sections of the Indian Penal Code (IPC) jumped by around 40% and rape cases rose by 30% in the first five months of this year compared to the same period last year. This happened despite the government setting up its own version of the anti-Romeo squad in 2018 with policewomen on two-wheelers.

“In Rajasthan, the government has not set up enough women’s help desks or One-Stop Crisis Centers [to assist rape victims]. Instead, they are trying to create these mechanisms [anti-Romeo squad] that are working against women being in public spaces due to moral policing,” said women’s rights activist KavitaSrivastava, who played a key role in the framing of the Vishakha guidelines to address sexual harassment at workplaces.

Now the Rajasthan government plans to set up special investigation units for crimes against women.

Delhi, meanwhile, had at least five rapes reported every day last year, according to NCRB data. So, the state government wants to boost safety by bringing more women into public spaces through free metro and bus rides, and installing 300,000 CCTV cameras. The Delhi Police, which reports to the Home Ministry, also launched a motorcycle-fleet of female cops to patrol the streets called Raftar.

But it is hard to spot this patrol squad on the road, according to Jaya Velankar, director of Jagori, a women’s organization that works to make city spaces safer. She also pointed out that unless roads are safe, free public transport won’t work.

Data from Delhi Police shows that sexual violence against women has only marginally decreased in recent times. In the first six months of 2019, reported cases of rape (IPC 376) were 973, down from 1,005 cases in the same period in 2018, while cases of assault on women with intent to outrage her modesty (IPC 354) decreased by 172 and insults to the modesty of women (IPC 509) decreased by 101.

Madhya Pradesh was the first state to propose the death penalty for men who rape girls under the age of 12, back in 2017. But violence against women has not gone down. Rape of minor girls in the state made headlines throughout June this year. Now the government has taken an initiative to introduce GPS tracking devices and emergency “panic buttons” in passenger vehicles such as buses and taxis.

Maharashtra assigned a 2.5-billion-rupee (US$36 million) budget for women’s safety initiatives. But sexual violence cases have risen despite this. But a survey by non-government groups Akshara and Safetipin found that 44% of areas in Mumbai, the state capital, were unsafe. It said women were only safe to walk on 22% of Mumbai’s streets.
This year the Maharashtra government finally proposed safety measures such as setting up SOS hotspots, tracking apps and installing more CCTV cameras.

However, feminists are not convinced that surveillance leads to greater safety for women or a loss of autonomy.

The rising number of crimes has put state lawmakers in a difficult position and they have criticized the police, who then discourage women from filing cases, Velankar claimed. But a higher number of reported cases also meant that more women were coming out to report violence and governments now had greater responsibility to assure they get justice, she said.

The implementation of a major national scheme to increase women’s safety is also not faring well. Recent reports revealed that between 2015 and 2018, states and union territories used less than 20% of the 8.5-billion-rupee ($124 million) budget allocated to them under the Nirbhaya Fund, which supports schemes for women’s safety. The fund was set up in the aftermath of a brutal gang-rape of a paramedical student in New Delhi in December 2012. Delhi, which has the highest rate of crime against women, fared the worst by using only 0.84% of the 350 million rupees it received.

“The Nirbhaya Fund is used as per proposals from different departments of the central and state governments. It will not be implemented if there is no will to do so,” a senior federal official of the Ministry of Women and Child Development told Asia Times on the condition of anonymity.

Experts say government initiatives and implementation of laws won’t create change if a culture of impunity has made the criminal justice system weak. Kaushik noted that some of the worst accusations against the police stem from recent rape cases of minors in Unnao and Kathua, where they are alleged to have bowed to pressure from people of influence to bury cases and evidence.

The Unnao rape victim, who claimed she was a minor at the time of the incident, tried to self-immolate last year due to the police not registering her complaint against a BJP lawmaker. In the Kathua case verdict, four police officers were convicted among the six accused in connection to rape and murder of an eight-year-old Kashmiri girl.

Another major hurdle that stops victims of sexual violence from getting justice is the low conviction rate in India, which is a mere 25.5% for rape and just under 22% for sexual assault and harassment, according to NCRB data.

(Courtesy: atimes.com)

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Opinion

Why justice matters in Jammu and Kashmir

The Kashmir Monitor

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By Harinder Baweja

Pakistan has for long sponsored terrorism in?Kashmir. But is it enough for India to point to “causality”, without introspecting on the fact that Kashmir has a long litany of documented human rights violations that have gone unpunished?

Think about it. Why does India get prickly each time allegations of human rights abuse in Jammu and Kashmir are placed at its door? Is it because there is some truth in the allegations? Does India have a lot to hide when it comes to violations committed by its men in uniform?

 

Dismissing an updated report by Office of UN High Commissioner for Human Rights (OHCHR), which faulted both India and Pakistan for not improving the situation in Kashmir, a ministry of external affairs (MEA) spokesperson said last week, “A situation created by years of cross-border terrorist attacks emanating from Pakistan has been analysed without any reference to its causality.”

Reflecting India’s indignation at being called out, the spokesperson said, the report “seems to be a contrived effort to create an artificial parity between the world’s largest and most vibrant democracy and a country that openly practices state-sponsored terrorism.”

Let us get this out of the way first.

Yes, it can be said, with no hesitation at all, that Pakistan has for long sponsored terrorism and will likely continue to practise its “bleed India through a thousand cuts” policy. It has suffered humiliation at the hands of the United Nations Security Council, which recently declared Jaish-e-Mohammad chief, MasoodAzhar, a global terrorist. But that tag too is unlikely to lead to the Pakistani deep State severing its ties with the jihadi outfits it sees as “assets.”

But is it enough for India to point to “causality”, without introspecting on the fact that Kashmir has a long litany of documented human rights violations that have gone unpunished? The Valley, in fact, has erupted in anger each time the men in uniform have crossed the line, but justice – that ever so important balm for a population as alienated as Kashmir’s – has mostly stayed elusive.

Let’s talk about the two occasions when the Valley boiled over with anger.

First, in 2010, Kashmiris took to the streets after the Indian Army, in a fake encounter, killed three civilians and passed them off as infiltrating terrorists. The gross violation was proved beyond a doubt. The unsuspecting civilians had been lured to Machil, a forward sector along the Line of Control, and killed in cold blood. Despite an Army court martial pronouncing five of its men guilty and sentencing them for life, the Armed Forces Tribunal suspended the sentence, arguing that civilians ought not to have been in a forward location, wearing “pathan suits”.

Just like in 2010, when over 100 protesting youth were shot dead, in 2016 too, the civilian toll crossed 100 after stone pelters – angry with the killing of militant commander Burhan Wani – took to the streets. Kashmir gave vent to deep anger and betrayal – not only because Wani was eliminated – but because the trust deficit between the Valley and Delhi had eroded over years, and reached break point.

The pellet gun became the symbol of oppression. It blinded, maimed and killed. The OHCHR report that India summarily dismissed, pointed to the basic tenets of injustice: “There is no information about any new investigation into excessive use of force leading to casualties. There is no information on the status of the five investigations launched into extrajudicial executions in 2016… No prosecutions have been reported.”

Kashmiris live with this reality every day. Why must brazen killings go unpunished? More importantly, why lash out at a report that questions excessive use of force?
The Kashmiri wound is deep and it has festered for too long. One major step forward would be to reduce the repressive security measures. Instead of negating charges of abuse and human rights violations, India ought to take steps towards setting up a truth and reconciliation commission. Why not encourage public hearings in which victims and their families are encouraged to speak?

Reaching out and admitting to violations will help rebuild trust. It is not enough to merely look at figures that point to a reduction in infiltration. The problem now centresaround home-grown militants. Violations only fuel the cycle of violence.

Admit, address and provide justice, for Kashmir is not a piece of real estate, to be ruled by force.

(Courtesy: Hindustan Times)

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Opinion

Remove stigma, report psychiatric ailments

The Kashmir Monitor

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By Dr Arif Maghribi Khan

“All patients are mad. All psychiatric medicines cause sleep.” Yes, this is the common perception in Kashmir. While the fact remains that according to easiest classifications of diseases, there are two types of psychiatric ailments – neurotic and psychotic. In neurotic diseases, patient does not lose contact with reality.

The patient can tell you his or her name, address, locality correctly while in psychotic ailments, patient’s contact with reality is lost and he or she lives in world of their own. Such patients often report seeing angels, strange figures, or hearing voices or sounds, which nobody else sitting with the patient sees or hears.

 

One example of psychotic ailments is schizophrenia, the prevalence of which is as low as 0.5 per 1000, while ailments like depression, anxiety, phobia form the bulk of psychiatric ailments. Even in this day and age, when all the world of knowledge and information is at our fingertips, we as a society have not been able to differentiate between the two.

So the stigma remains attached with psychiatric ailments thus delaying diagnosis and treatment. It is because of this stigma, people visit psychiatric settings with faces covered or masked. Young adults and children fear to disclose to their parents if they suffer from depression or anxiety disorders, which leads them to live an impaired life, wherein they struggle with issues like loss of interest in studies or even loss of employment as their inability to concentrate consistently tears apart their social and professional lives.

Parents are there to discipline and guide children but not to make them fear depression. Another problem hitting psychiatric healthcare in Kashmir is the myth that all medicines prescribed by psychiatrists cause sleep, while the fact is that psychiatric medicines work by increasing, changing or blocking activities of neurotransmitters.

Nerves carry information from the body to the brain and vice versa. The brain is composed of roughly 86 billion neurons. Chemical messengers called neurotransmitters carry messages between neurons to help the brain receive the information, decide what it means and execute a reaction. Neurotransmitters are responsible for emotional regulation, pain perception, motivation, concentration, memory energy, mood, sleep patterns, libido. Any imbalance can result in Depression, Nightmares, Mental Fatigue, Anxiety, Impaired cognition, attention, and arousal, Apathy, Lack of motivation, Poor attention, and Fatigue. Most of the time a qualified psychiatrist uses anti-depressants which do not cause sleep, in first few months of treatment depending upon the psychiatric ailment anxiolytics, also known as ‘tranquilizers’ are used.

So let’s stop assuming that all medicines cause sleep and we will be dependent on them for rest of our life.

The biggest challenge faced by doctors today and specially psychiatrists is that due to easy availability of internet most patients start Google searching medicine for 8 minutes prescribed by a doctor who studied medicine for 8 years, fact is that not all information surfers get on medicine by Google search is authenticated. Patients are well advised to seek such information from doctor rather than what is searched on internet or what a specialist from other field like education or engineering has to say!

We need to fight epidemic of psychiatric ailments including drug abuse on basis of science and not search on internet. It’s as simple as that, to aware common people doctors, counsellors from field of mental health need to work vigorously in community to clear myths and mist surrounding psychiatric ailments. We need to give patients of anxiety disorders or drug abuse respect and not scare them with unfounded information. Also next time we label some person as mad for being stressed kindly read this survey of again “Nearly 1.8 million adults (45% of the population) in the Kashmir show symptoms of significant mental distress according to a comprehensive mental health survey conducted by the medical humanitarian organisation Médecins Sans Frontières/Doctors Without Borders (MSF) between October and December 2015. The research was done in collaboration with the Department of Psychology, Kashmir University and the Institute of Mental Health and Neuroscience (IMHANS).

(Author can be mailed at [email protected])

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