18 Dec 2019: The Hindu Editorial Analysis
1) On Justice for the Rohingya
- Last week’s preliminary hearings at the International Court of Justice (ICJ) seeking guarantees of basic protection for Myanmar’s Rohingya Muslims arguably offer only symbolic hope to this long-suffering community.
- Yet, the lengthy legal process at the Hague Court on the plight of thousands forcibly exiled in refugee camps in Bangladesh is key to forcing accountability on Yangon.
- The case brought by Gambia, a tiny west African state, on behalf of the Organisation of Islamic Cooperation, pertains to alleged genocide in 2017 committed by the Myanmarese military.
- The forces have insisted that their actions were merely in response to the armed insurgency, notably by the Arakan Rohingya Salvation Army.
- The UN and several rights groups have documented orchestrated incidents of torched villages, mass rape and other atrocities by the military, forcing over 700,000 Rohingya to flee to Bangladesh.
- Rendering the lot of the Rohingya in Myanmar’s Rakhine state particularly vulnerable is the denial of citizenship and the reference by nationalist sections to them as illegal Bengali immigrants.
- Oddly enough, arguing the defence of the junta’s actions at the ICJ was Nobel Peace Laureate and Myanmar’s leader Aung San Suu Kyi, whose National League for Democracy swept to power in 2015.
- She asserted that the Army had acted proportionately in countering the rebels and accused Gambia of misrepresenting the situation, while critics point out that she downplayed the extent of the violence and official failure to intervene.
- Observers highlight the absence of an explicit reference to the Rohingya in her testimony, much like her equivocation after the 2017 carnage and claims of fake news. She has even been accused of choosing to argue the defence in person with an eye on the 2020 general election.
- Lawyers representing Myanmar insisted that while violent crimes were committed during the conflict, motives of genocide against the community could not be imputed against the authorities.
- The ICJ, which adjudicates disputes between countries, has handed down guilty verdicts in a few cases relating to crimes of genocide.
- But crucially, it has stopped short of pinning the blame directly upon states as in the 2007 ruling on the Bosnian war of the preceding decade, relying on a differentiation between ethnic cleansing and genocide.
- The challenges of establishing conclusive proof of the intention to extirpate entire communities underlies this caution. A decision regarding genocide relating to the atrocities against the Rohingya is not expected any time soon.
- The more urgent concern before the court is Gambia’s petition seeking an injunction that the violence against the community cease forthwith and the government guarantee immediate protection.
- Myanmar must guarantee immediate protection for its Muslim minority and Ms. Suu Kyi must heed that call without reservations.
2) On Pervez Musharraf death sentence: The General in trouble
- A Pakistani special court’s decision on Tuesday to hand down the death penalty to former dictator Pervez Musharraf is perhaps one of the most consequential decisions by the country’s judiciary in recent years.
- Mr. Musharraf, who captured power through a bloodless coup in 1999, was found guilty, under Article 6, of high treason for declaring a state of emergency in 2007.
- Then, Mr. Musharraf, faced with massive protests against his regime, suspended rights, carried out a nationwide purge against rivals and placed key figures under house arrest.
- The high treason case was filed by the Nawaz Sharif government in 2013. The court, in a 2-1 verdict, stated that Mr. Musharraf was guilty of violating and subverting the Constitution and gave him the highest punishment under the High Treason (Punishment) Act of 1973.
- Mr. Musharraf, currently in Dubai, can appeal. If the Supreme Court upholds the death penalty, he could still seek presidential pardon. While the legal battle can continue, what is clear is that the ruling is a setback to the military and the government.
- The Imran Khan government had earlier moved the Islamabad High Court, asking it to restrain the special court from passing the final judgment in the Musharraf trial. The High Court delayed the verdict and allowed the government’s prosecution team to present fresh arguments. But none of these came to his rescue.
- This is the first time in Pakistan’s history that a military chief has been found guilty of treason and given the death sentence. It is significant given the complex institutional power dynamics in which the military has always held great sway.
- In a country that has seen coups and was ruled directly by the military for over three decades in total, it is not easy to stand up to the interests of the establishment. Still, that is what the judiciary is doing in recent days.
- Last month, the Supreme Court cut to six months the Army Chief General Qamar Javed Bajwa’s three-year extension given by the government. If he has to continue beyond the six-month period, Parliament has to pass new legislation in that regard, according to the court.
- If that was a challenge to the military-government nexus, the death penalty awarded to Mr. Musharraf, the once-all-powerful leader, has struck a blow against the establishment.
- It could act as a legal deterrent against any military intervention in civilian affairs. It also strengthens the judiciary as an institution further, redrawing the institutional equilibrium in Pakistan’s power dynamics.
- The civilian authorities should seize the moment to alter the balance in civil-military relations. What Mr. Musharraf’s fate should be is up to the higher courts to decide.
- But the spirit of the special court’s judgment is to hold the men in uniform accountable for their actions and enforce the primacy of the Constitution. The judiciary in Pakistan is providing an opportunity to redraw civil-military relations. Which is good news for democracy.