Tuesday 16 October 2012







Not much needs to be said about the importance of judiciary in any particular state. In Pakistan where the governmental system is much like that of the USA where all the three arms of the government are bound to each other in a relationship that does not give any other arm extra strength. Unlike our legal and colonial godfather UK, the Pakistani constitution does not practice parliamentary supremacy. The obvious question that any one would ask in this case is how to strengthen the judicial system which seems to be very ineffective at times.


 Consider the difference between the case lists in Pakistan and USA. We go to courts here and the average district judge has the responsibility of listening to around 60 cases daily. Now let us fly our selves to New york where when you go with a dispute to a court, the concerned parties are automatically referred to licensed alternative dispute resolution practitioners or retired judged. The arbitrators, mediators or reconciliators listen to the cases and pass a judgment which if further contested goes to the court. However the result is that around 90% of the disputes are resolved at the very first stage leaving the courts with important matters where the judges can give their full concentration to the case at hand and resolve it in a speedy and just manner.


Pakistani law does indeed provide for such alternative dispute resolution under the Arbitration Act 1940 but it is dependent on there being an arbitration agreement between the concerned parties. This act was a huge step back in 1940 but today we live in 2011 where arbitration has become a common and even necessary means of dispute resolution and international arbitration centers have emerged all over the world. Our 1940 act remains outdated when compared to the UK’s Arbitration Act of 1995 where we see that our courts have terrific discretions to interfere with any arbitral proceedings and they don’t shy from using that discretion either. The result has been Pakistan being classified as an “arbitration blackspot” because of Pakistan’s failure to update its laws to incorporate modern norms. 
 
As per section 11 of the 1940 Act appointed arbitrators can be removed by the courts. The court interference results in arbitral awards being regularly challenged in the courts and their implementation has to be done through the courts themselves under Section 17. The Court may modify the arbitral award (section 15), remit the award for reconsideration by the arbitrators (section 16) or even set it aside (section 30). The Act in general is almost completely silent on the procedure of arbitration and contains no direction on treatment of evidence and matters relating to disclosure.


These problems remain despite Pakistan being a signatory to the New York Convention and the Washington Convention on Arbitrations. These conventions have been ratified but adequate steps to implement the laws within these conventions have still not been taken. The Pakistani Supreme court was the world’s first court to award an injunction against ICSID arbitration which is a form of arbitration not subject to any interference by the national courts.

Whereas the interference by the Pakistani courts into arbitrations has hampered the process of the development of formal alternative dispute resolution forums, they cannot altogether be blamed. The need arises because the arbitration setup within Pakistan is very haphazard and scattered. Due to a lack of formal knowledge arbitrators themselves are often in violation of standard procedures and crafty lawyers draft agreements that allow a concerned party to become an arbitrator in his own case. The present nature of the unfair arbitrations being conducted allow the court’s interference as a relief incase injustice has been committed. In addition the New York and Washington Convention are often seen as conventions that were organized to safeguard the investments of foreign companies in a particular country. Their implementation has been minimized in Pakistan to prevent political upheavals.

It is suggested that in the case of Pakistan the courts should establish arbitration forums that are run by former judges and experienced lawyers. The lawyers appearing in arbitration proceedings should not be members of the bar councils thereby barring litigating and they should be solely arbitration lawyers. In addition any particular lawyer or judge should have not more than three arbitration cases at a time to prevent delays.

The possible success of court organized arbitration can be evidenced by an experiment in alternative dispute resolution conducted in the Lahore High Court in the year 2000. The then Chief Justice Mian Allah Nawaz ordered for the instituting of a mediation and conciliation forum for family law matters. In three months 16000 cases were disposed off as apposed to the normal rate of around 1000 in courts. This success was lauded by several international forums including the World Bank and replicated in other countries. Sadly not only was this institution abolished but no other was ever made in its place.

Saturday 13 October 2012




The space week is almost at an end and we all sit waiting eagerly to see what the Hubble has to show us next.We might think Star Wars is fiction but in reality it is not too far from the truth. Space and technology have always held an overwhelming sway over the imaginations of this planets residents and has manifested its prowess over the centuries. Long ago heliocentric models constructed by rudimentary instruments led to an age of enlightenment. In the recent history it was the space race that determined the fate of the cold war.

It was 50 years ago when a Soviet cosmonaut Yuri Gagarin left the thresholds of our planet. Since then many developed countries have joined the space race and are spending tremendous amounts to keep up the competition.


Pakistan however is a unique exception. A developing country burdened with abject poverty and loans but soaring hopes and sky high dreams. In 1998 against all odds it became a nuclear state and now it is vying to become an active member of the space age. The Pakistani government is spending a whopping $82 million on its National Space Program. The primary Pakistani space agency SUPARCO has the goals of launching Pakistani satellites from Pakistani rockets into space. So far 3 satellites have been launched by Pakistan with foreign rockets. The first satellite Badr-1 was launched and has successfully completed its life. Paksat-1 the second satellite developed malfunctions soon after its launch and it has been decommissioned now. It will now be replaced by Paksat-1R. The third satellite Badr-B’s existence is suspect primarily because it could possibly be used for spying purposes.  Presently Pakistan is in the process of developing its own low cost Satellite Launch Vehicle (SLV). Further there are plans to co-operate with the Chinese space program and send a Pakistani man abroad.


It could be argued that a poor country like Pakistan should not be wasting funds on far fetched ideas like space technology. However by developing indigenous technology countries reap the fringe benefits of developing a host of other technologies and industry. The impact on the morale of people is also marvelous and serves to boost national pride and the status of Pakistan in the world as a muslim leader on all cutting edge technology forefronts. When asked by generals how a particle accelarator would help make a better bomb, Robert R. Wilson, the head of the Fermilabs in USA replied to the national security meeting"It only has to do with the respect with which we regard one another, the dignity of men, our love of culture. It has to do with those things. It has to do with, are we good painters, good sculptors, great poets? I mean all the things that we really venerate and honor in our country and are patriotic about. It has nothing to do directly with defending our country except to help make it worth defending."



 Even though Pakistan lacks technically up to date observatories and education of formal space sciences in its universities its space program is ambitious. Pakistani students and youth have taken active interest in these fields and are bound to display their talents.

Wednesday 10 October 2012









“There are many cumbersome ways to kill a man” is the title of a poem by Edwin Brock’s 1997 Poem. He says that ‘in the age of aero planes, one may fly miles above his victim and dispose of him by pressing one small switch. All one then requires is an ocean to separate him, two systems of government…’ and so on. With over 62 years of animosity Pakistan and India do not seem to require the ocean that Edwin Brock speaks of and clearly has a much more complex situation. However the USA through its nuclear technology focused 2006 deals and aircraft focused 2010 deals has no doubt changed the political scenario of South Asia and is continuing to have drastic effects on the entire world. For India Edwin Brock forgot to mention that the equipment should state ‘made in USA’.
 



  However whose interest is the deal in and who is benefiting from it is questionable. There are two aspects to this deal (a) The US is exploiting India by selling weapons and aircrafts to a poor developing country which are in turn being used against Pakistan and other states in the region by the Indian government or (b) the US is supporting Indian military build up and increased importance in the region and is therefore fuelling a militant mindset within India by providing weapons and signing deals.





The first aspect is that of India acquiring weapons for the modernization of its military. These weapons are primarily being brought from the US and include weapons that the US would not supply to any other country. In February this year at the DefExpo 2010 trade fair in New Delhi the Defense Minister A.K Antony stated that the Indian defense expenditure is going to increase. Further he stated “our defense industry is open up to 100 percent for Indian private sector, while foreign direct investment is allowed up to 26 percent.”




Over the next 12 years, India is set to spend a whopping US$200 billion on defense acquisitions to replace its outdated inventory. In this regard, on February 15, 2010, a report of the Indian strategic defense magazine (India Strategic’s DefExpo) revealed that 70 per cent of the inventory of the Indian armed forces is 20-plus years old, and needs to be replaced with the modern technology. It explained that nearly half of this funding ($100b) will go to the Indian Air Force (IAF), which would need to replace more than half of its combat jet fleet as well as the entire transport aircraft and helicopter fleet. The army needs new guns, tanks, rocket launchers, multi-terrain vehicles, while the navy needs ships, aircraft carriers and new range of nuclear submarines. 



The US has emerged as a potential military supplier to India since the two countries signed a deal of civil energy technology in 2008, which lifted sanctions on New Delhi in order to import nuclear technology. India is likely to become a major customer for the US military-industrial complex over the next few years. During the recent visit of the US Secretary of State Robert Gates to New Delhi, American Defence officials, however, have said that US weapons sales to India would not be a focus of the trip. Regardless of such denials, the key reason for the Gates’ visit can be found in the fact that India is planning to raise its military budget by 50% to almost $40 billion. In contrast to India’s planned defence expenditures, Pakistan’s entire 2009-10 budget amounts to little over $30 billion. Such spending on military expenses is very questionable by a third world country with a majority of its population still in abject states of poverty.



India, the largest arms buyer among emerging nations, accounted for 7.5 per cent of all international arms sales between 2000 and 2007. It has spent billions of dollars in the past few years on purchases of planes, radars and ships from US, Britain, France, Germany and Russia and Israel. In recent years, India has bought reconnaissance aircraft from US aerospace major Boeing worth 2.1 billion-dollars, medium range missiles for 1.4 billion dollars from Israeli Aerospace Industries, and signed an upgrade service contract with the Russian Aircraft Corporation to upgrade its MiG 29 squadrons for 965 million dollars. Several deals are planned for the near future including one of the largest arms contracts of recent times—a 11-billion-dollar project to acquire 126 multi-role combat aircraft from the US. 


 Whether this is because India wants to become a mini-superpower of the region and hence it uses the pretext of deterrence against Pakistan and China or is being exploited and coaxed into spending money on acquiring weapons by the US is of course still unknown.



Currently, more than half of India’s budget is allocated for military, paramilitary, various security forces and debt servicing. That leaves less than half for everything else including infrastructure development projects, education, healthcare, poverty alleviation, and various human services. New Delhi’ s latest arms buildup will leave even less for what India needs most to lift hundreds of millions of its citizens from abject poverty, hunger illiteracy and disease which continues to hamper any chances of real economic progress within the country. 



Indian civil society organisations, while complaining of excessive defence spending indicated that the government spends twice as much on defence as on the social sector. The defence budget for 2009-2010 is 29 billion dollars, up 34 percent over the previous one. Indian defence analyst Ravinder Pal Singh, while calling New Delhi’s unending defence spending at the cost of poverty-alleviation—with security requirements competing with socio-economic concerns for money calls it guns-versus-butter question Even some of Indian officials are surprised in relation to Indian defence expenditure which has no bounds. For example, an official of the country’s finance ministry remarked, “There is a dilemma…poverty needs to be eradicated to prevent men from taking to the guns…but more funds for security means less money for poverty alleviation.”




Meanwhile, a report of United Nations pointed out that India ranks 134th of 182 countries on the United Nations Development Programme’s Human Development Index. It estimated that 50 per cent of the world’s undernourished population lives in India. Nearly 31 per cent of the billion-plus Indians earn less than a dollar a day. Secretary General of the Control Arms Foundation of India Binalakshmi Nepram said, “When people are dying of poverty and bad sanitation, what protection will arms provide them?” On the one hand, international community has been making strenuous efforts for world peace in wake of global financial crisis and war against terrorism, on the other, India has initiated deadly nuclear arms in South Asia where people are already facing multiple problems of grave nature. Majority of South Asian people are living below the poverty level, lacking basic facilities like fresh food and clean water. While yielding to acute poverty, every day, some persons commit suicide in India, Pakistan, Sri Lanka etc due to the ongoing wars in the region.



Setting aside regional problems, and resolution of Indo-Pak issues-especially thorny dispute of Kashmir, Indian rulers state that they don’t have any aggressive designs. But it becomes a big joke of the 21st century, reminding a maxim, “armed to the teeth, but no enemy”, if we take cognisance of India’s unending defence expenditure.




However these arms are being used to uphold some devious designs either from the US government or the Indian government. The full transcript issued by the pentagon following the South Asian Tour of US defense Secretary clearly stated that "I would tell you that the United States clearly has not or has ever propped up India. India has not needed us for that purpose and, in fact, those familiar with the history would know that our relationship with India was fairly strained until not too many years ago," These remarks were made when the Defense Secretary was volleyed by questions from Pakistani journalists who accused him of propping India against Pakistan. These questions were thrown at him in response to his statement “India has responded with great restraint and statesmanship after the Mumbai terror attacks. But the ability to continue with it after another attack is under question… It is not reasonable to assume that Indian patience is unlimited in case of another attack”. These remarks were issued after a joint meeting with Indian Defence Minister A.K. Antony.



These statements clearly reveals the admission of a new role for India in the region. There is ample talk of how India is being used to counter China and Russia. The US plans for regional domination can only be achieved through India by keeping other forces in check and accessing the natural resources of Afghanistan, Central Asia and the Caspian region or by denying access to the same to China and Russia. The increased Indian diplomatic efforts in Central Asia and its extremely heavy involvement in Afghanistan with linkages with the US are clear indicators that India is fulfilling a role.



Yet such statements issued by the Foreign Secretary who is the only remaining legacy of Bush in the Obama Cabinet have harkened memories of sadness for Pakistan who were awaiting a change in government and indeed a change in the US policy towards the region. These statements were labeled as ‘very irresponsible’ by the Prime minister Yousaf Raza Gillani. The statement has clear underlying implications. Firstly that non-state actors can easily nudge the states into a total state of war. Secondly the long history of CBM’s and composite dialogue has been futile and the peace of both nations hangs by a thread. Thirdly the US will not intervene if India attacks Pakistan because inevitably the non-state actors will be Pakistani’s and therefore Pakistan will be responsible.



Ever since 2006 two major incidents have taken place in India for which Pakistan was blamed through use of Non-state actors. Firstly the Samjhuata express bombing of February 2007 and then the Mumbai attacks of 26 November 2008. In both cases India was quick to levy accusations against Pakistan in a very unthoughful and impulsive manner. Later investigations have revealed the contrary. The investigations showed that the Samjhuata express bombings took were planned and executed by retired Indian Army officers most prominent of them being Lt. Col P.S.Purohit whose network included ties to Shiv Sena and BJP. Similarly Ajmal Kasab has revealed to the Indian Courts that he was under custody of the Indian intelligence agencies and was brought to the place of the attack and was asked to participate in the attack. Such revelations are vital for understanding the Indian designs and its new found thirst for power.



Indian involvement has been uncovered at FATA and Balochistan within Pakistan. Reports of their involvement were shared with the US and with Indian Governments. Yet the US keeps pressing Pakistan to continue its wars on the western borders against the Afghanistani Taliban therefore denuding its forces on the eastern border. Adding to the military problems is the Indian stance on major unresolved issues like Kashmir, Water, Siachen and Sir Creek on which it continues to be stubborn. Such matters indicate that the security balance has indeed changed ever since the deal. India continues to abstain from signing the NPT and deals with the US have allowed India the quantitive advantage over Pakistan to produce nuclear weapons and fissle materials. Ever since the 2006 deal India is able to use freed up resources to make atleast 280 nuclear weapons a year. Pakistan has questioned the Conference on Disarmament’s only focus on ‘cutting-off’ further production, however it needs to be kept in mind by Pakistan that delays in the same will only exacerbate the nuclear race in India until a consensus is reached.  


Tuesday 8 May 2012




The recent Hajj scandal created copious furor amongst the faithfuls who saw a glimpse of the how klepocratic governance taints a pillar of the religion. Whilst there is not much the government can do with the other 3 pillars, one pillar in particular has been desecrated for too long now. The pillar of Zakat. As a part of his Islamisation package General Zia introduced the Zakar and Ushr Ordinance of 1980 which was supposed to usher Pakistan into a new age of egalitarianism and equality by forcing everyone to pay zakat as a state duty rather than a religious duty. This was to be enforced through all means of state operations and applied to banks as well. A bulky bureaucratic system was established to conduct the affairs and ensure that the faithful do indeed perform their religious duty.   Countless scandals have heaped up with the incorrect use of the zakat money. We hear of it being used to fund frivolous government expenses of cars for ministers and even holiday trips to luxury islands. The Shiites are exempt from this government duty and as a result of this marred ordinance the government books saw a surge in the population of people who identify themselves as Shias.

The system of Zakat was introduced in Islam to reduce the disparity between the rich and the poor. We all hear of the example of Zakat working so well that in the times of Hazrat Umar there were zakat payers but no one wanted to receive it because they had already benefited so much from the zakat. Zakat needs to be differentiated from government imposed taxes. Even the most incorrigible tax evader would happily pay zakat because it is a divine duty and not one that can be imposed by the state upon an individual. Given that it is a divine duty the practice is essentially voluntary. By bringing zakat under the state system the government has gained access to tremendous funds that people pay along with their taxes. The province of Punjab alone had gathered more than Rs. 40 billion in zakat collections last year. Despite such tremendous funds we see that the income disparity is rising and the developmental projects that could benefit the poor are being capped.

There are however several changes that can be fashioned to save the poor of Pakistan and the faithful zakat payers from complete disillusionment from the state. The first and most important amongst these moves is depoliticizing the zakat department. Presently all the officials are government appointees and whoever gets voted into power, appoints their own people. For zakat funds to be spent by biased officials in the PML or PPP constituencies depending on where which votes were cast is fundamentally repugnant to the concept itself.

It is suggested that an alternate zakat system be devised on the ideas of devolution and decentralization. This would involve creation of lists of zakat payer which would be created by the zakat payers themselves in any particular area. These lists would be an electoral college and from amongst them the zakat payers will select officials to spend the zakat on tehsil and district levels. The spending of zakat, rather then being doled out to beggars, needs to be instead utilized in the formation of industries and economic units that generate income and employment for the people.  

The government still needs to regulate the zakat collection and spending to prevent mismanagement by appointed individuals. For this authority however only a monitoring role is needed and therefore calls for the axing of almost all senior positions in the zakat department. The white elephant named the Zakat Ministry also needs to abolished in this detoxification drive. The parasitic ministry and senior positions are all utilizing government funds for functions that could just as well be performed by individuals if not better. For governmental control and the retention of guidance that popular elected governments can impart the zakat departments need to be brought under the Chief Minister. The chairman of the department is to be appointed by the chief minister to ensure government interest and guiding role. The secretary of the department would also be answerable directly to the Chief Minister.

The political interest of parties in zakat collection and implementation needs to be retained because of the zakat has ample effects on the government budget and economic policies. It increases the productivity of a state by improving the health and nourishment and also expands the physical, mental and spiritual abilities of the citizens. It influences the prices of commodities and increases investments in certain areas. Since it increases consumption, the employment rates also rise. It is also an important tool in formulating an economic policy. Its use however must be wise and democratic in nature to ensure fair collection and dispersion.
 

Copyright 2010 Safi Ghauri.

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