Monday, September 30, 2019

Business Recorder Editorial October 1, 2019

Pakistan’s best options on Kashmir

Prime Minister Imran Khan’s maiden speech at the UN General Assembly was a passionate and reasoned advocacy of the case on Kashmir and the dangers of tensions between Pakistan and India over the August 5, 2019 annexation of the only Muslim-majority state by Prime Minister Narendra Modi’s government escalating into armed, and God forbid, nuclear confrontation. The speech has been widely welcomed and well received. However, even if it succeeded in rattling the conscience of the world, it did not, and cannot, change the ground realities. Earlier, Modi in his address to the General Assembly had avoided even a mention of Kashmir, confining his remarks to the alleged danger of ‘terrorism’, by which he was alluding to the Indian fable of fighters being infiltrated by Pakistan into Indian Held Kashmir across the Line of Control. The fact, however, is that Imran Khan has consistently been arguing against any crossing of the Line of Control by anyone since this would invite even further repression of the people of Indian Held Kashmir and FATF action against Pakistan. In fact, when Imran Khan delineated this policy of restraint the other day, it found favourable mention by Alice Wells, US Deputy Secretary of State for South Asia. Ms G Wells on September 27, 2019, after Prime Minister Imran Khan’s speech in the General Assembly, chimed in with a call to India to quickly ease woeful restrictions on Kashmiris. Subsequently, at a presser she said that Prime Minister Imran Khan’s commitment “to prevent cross-border terrorism”, if implemented, would provide a strong basis for India-Pakistan dialogue. Although US officials, from President Donald Trump downwards, have been making sympathetic noises about the situation in Kashmir and Pakistan’s concerns around the issue, not much can be expected to move, not even Trump’s ‘mediation’ offer, which India, in line with its long standing policy of rejecting third party involvement, categorically ruled out. Frustration and anger at the treatment being meted out to the people of Indian Held Kashmir has boiled over in Azad Kashmir, with people planning to gather at the Line of Control to cross over in solidarity with the suffering people on the other side. Pakistani military authorities have stated clearly that no such potentially incendiary step will be allowed, despite some understanding in official circles as to what is giving birth to such extreme ideas.

Now that the excitement around Prime Minister Imran Khan’s speech at the General Assembly is subsiding, as it must in the cold, clear light of the days after, it is worthwhile examining what exactly are Pakistan’s options. First and foremost, India, exercising its right of reply to Prime Minister Imran Khan’s address, focused, not unexpectedly, on the same ‘terrorist’ refrain by asking, “Can Pakistan confirm it is home to 130 UN-designated terrorists and 25 terrorist entities?” The fact is that India’s ‘terrorist’ mantra is out of date, since the powers-that-be in Pakistan have distanced themselves from any such individuals or entities. India’s ‘defence’ of its indefensible position in Kashmir therefore is currently irrelevant. What is relevant currently is the possibility that the nearly two-month-old repressive measures by New Delhi are unsustainable for long. Imran Khan in his address warned of the possibility that when the curfews and other restrictions are lifted, the Kashmiri people will come out to resist and a ‘bloodbath’ could ensue. That would raise the temperature beyond control if cooler heads do not prevail. Pakistan and the people of Kashmir’s interests are best served by continuing with diplomatic and political support to the struggling people of Kashmir on every available forum without indulging in any adventurism in anger that could cause things to spiral out of control in a hair-trigger, tension-ridden situation.

Friday, September 27, 2019

Business Recorder Editorial September 27, 2019

Boris Johnson rebuffed

British Prime Minister (PM) Boris Johnson’s prorogation of parliament has been struck down by the Supreme Court (SC) as unlawful, void, and of no effect since it frustrated and prevented parliament from carrying out its constitutional functions without any reasonable justification. The verdict of the highest court must count as an epic moment in Britain’s constitutional history. Amidst the cheers of those gathered outside the SC, opposition Labour leader Jeremy Corbyn led calls for Johnson’s resignation. The unprecedented move by the PM had been aimed at giving the opponents of his no-deal Brexit by October 31 if new terms cannot be agreed with the EU by mid-October no time to block his intended strategy. This transparent ploy outraged his critics inside parliament, including, it may be added, members of his own Conservative Party, along with millions of Britons who may or may not have been engaged with Brexit but felt offended by Johnson’s ‘coup’ against parliament. The move was challenged in the courts, and despite a favourable verdict by a lower court in Scotland, its highest court, the Court of Session (CoS) in Edinburgh, struck down the prorogation. Essentially the SC has now upheld the verdict of the CoS, a verdict described as the final straw in a pitiful episode. Johnson received the news in New York, where he was to address the UN General Assembly and rush back home to attend the reconvened session of parliament, where he, as expected, faced a torrid time but remained defiant and declared that with utmost respect he differs with the view of the SC. He dared his opponents in parliament to table a motion of confidence, signalling thereby that he has no intention of resigning. Having already lost his majority in parliament after expelling senior Conservative parliamentarians who opposed his prorogation move, it remains to be seen whether Johnson will be turfed out by parliament in a sweet revenge for his efforts to shut down the house for politically partisan reasons.
The outcome of the whole episode has dealt a huge blow to Boris Johnson’s authority and his plan for a no-deal Brexit by October 31 if all else fails. The whole argument for getting better terms was spurious, as the EU had repeatedly rejected any new terms in the absence of any serious, workable alternatives to what was on offer from the bloc. Jeremy Corbyn, in the inimitable understated style of Britain, albeit laced with some tongue-in-cheek irony, said: “I invite Boris Johnson to consider his position…” But Boris being Boris, it is unlikely he will simply submit to the writing on the wall. An ouster through a confidence vote may well prove a bruising experience for all, but the author of this further embarrassment would be none other than Johnson himself.

Whichever way the three-year-old Brexit saga now unfolds, it truly has been a most extraordinary episode, particularly for the country that houses the mother of parliaments. Britain has no written constitution, and the affairs of parliament are run traditionally according to unwritten conventions and precedents that have been established over time. The prorogation debacle may revive calls in Britain for a written constitution, but judging by the manner in which the judiciary has upheld what appears to be a fitting outcome, the proponents of continuing in traditional ways will be able to marshal powerful arguments on their behalf. Unfortunately, the Brexit referendum of 2016 found hate and racism, not to mention some lingering imperial hangover, to have been instrumental in the result. The kind of unprecedented divisions it has produced in the UK cannot find a close parallel in modern British history. Although Johnson still clings to the hope of persuading the Labour Party to agree to a fresh election, because Labour’s chances of victory are not certain given that it is internally divided over Brexit, Corbyn is unlikely to oblige Johnson with this least humiliating exit. British politics, whatever the outcome, has seldom seemed as fascinating as at present.

Thursday, September 26, 2019

Business Recorder Editorial September 26, 2019

Words of wisdom

Two eminent judges of the Supreme Court (SC) have in their respective addresses at a conference in Karachi the other day uttered words of profound wisdom that should make all stakeholders in the future of the country sit up and take notice. First, Justice Qazi Faez Isa, who is these days facing a reference in the Supreme Judicial Council that has been challenged in a number of petitions before the SC. The general perception is that the powers-that-be did not like the judgement Justice Isa delivered in the case of the Tehreek-i-Labaiq dharna (sit-in) in Islamabad, carrying as it did strictures against powerful institutions of the establishment. It is a tragic and continuing irony of our life as a country that bold and upright people who do not shrink from speaking truth to power are targeted instead of being appreciated. Justice Isa did not disappoint in underlining and highlighting what is wrong in our judicial system, other state institutions, or the constitutional limits within which they are expected to operate. On the judiciary, Justice Isa said it has the authority to stop individuals or institutions from transgressing fundamental rights according to their whims. He quoted from history, particularly the wrenching breakaway of East Pakistan to re-emerge as Bangla Desh, arguing that when institutions overstep their domain, not only were the basic rights of the people violated, it also weakened the country. Continuing, he explained that when the government of one person was imposed through martial law and democratic principles ignored, even thousands of military personnel could not save the country from being bisected. Not only that, the Hamoodur Rehman Commission Report had not been released to date, ensuring no lessons were learnt from that episode. The judiciary too, Justice Isa continued, should not overstep its domain and used the example of the suo motu proceedings on an unknown written complaint to the SC regarding the imposition of six different taxes on mobile phones, which was initially stayed by the SC, causing thereby a Rs 100 billion loss to the exchequer after the SC concluded it could not consider the matter because it did not fall within the purview of fundamental rights under Article 184(3). Justice Isa also touched frankly on the ‘disappearance’ from time to time of some TV channels (and newspapers) and the strict censorship that had been imposed on the media. A free judiciary and a free media, he argued, were necessary foundations for any democracy.
The following day, Justice Maqbool Baqar of the SC further dilated on these issues of constitutional, legal and institutional nature. He advised the judiciary to isolate itself from all inappropriate connections in order to ensure and maintain its independence. He also agued that judges should not, however, live in ivory towers and should acquaint themselves with the ground realities of our society, particularly the condition of the poor and indigent. Only then, he continued, could there be hope for a people-oriented judicial system. The judiciary, he argued, had to earn the respect and confidence of the people. Judicial independence was a sine qua non for safeguarding the democratic system and ensuring against the violation of human rights. Judges’ appointments therefore must be guided by objective criteria. Last but not least, Justice Baqar drew attention to the limits of judicial/legal intervention in political decisions by the legislative and executive branches of the state.

Both learned judges of the SC have laid down the parameters of the judiciary’s role, functioning, and limitations drawn by the constitution and law. They have also pointed to the unexpected consequences and negative effects of judicial hyper activism. The boundaries within which state institutions must function under the trichotomy of our constitutional construct have been demarcated by the honourable judges. In an ideal world, the powers-that-be as well as all stakeholders should have paid great attention to the wisdom enfolded in the honourable justices’ remarks. Unfortunately though, our present trends at the level of state and society do not inspire confidence that the judges’ pertinent ideas will serve as a wake up call to all those who matter.

Tuesday, September 24, 2019

Business Recorder Column September 24, 2019

Media tribunals faux pas

Rashed Rahman

The Pakistan Tehreek-i-Insaaf (PTI) government, amongst all its other failings, suffers from impetuosity and lack of forethought. An example of these traits has recently been on display in the federal cabinet’s ‘decision’ to set up media tribunals to handle complaints against the press. It seems that for this government, the stranglehold on the media, freedom of expression and the public space is not enough. Through such measures, it wishes to eliminate even the limited freedoms being exercised by the media. With all the roadblocks set up by this ‘hybrid’ dispensation in the path of a free media, including shrinking government advertising in the midst of an economic downturn that has shrunk private sector advertising too, the chinks in the curtain have seen growing incremental criticism of the government’s policies and performance. This is anathema to thin-skinned Prime Minister Imran Khan, whose example trickles down through the ranks of his party and government.
Proof of this assertion resides in the reports that the federal cabinet took up the idea after a couple of ministers complained of being continuously targeted by the media and their image tarnished, with mala fide intentions according to the peeved complainants. In any mature cabinet, the ministers would have been educated by their colleagues on the need for tolerance of criticism while in office, that being the hallmark of any democracy worth its salt. Instead, the cabinet entire, in knee-jerk fashion, pounced on the idea of setting up the proposed media tribunals with the unspoken aim of preventing even the small space for critical reporting and comment being utilised in the interests of the people and the country.
Critics can point to the laws against defamation, slander and libel for addressing complaints against the media. Of course the counterpoint would be the impossibly slow judicial process, particularly on the civil side, which causes such complaints to literally wither on the vine while waiting for the snail’s pace, winding, tortuous judicial process to play out. While there can be sympathy for this counterpoint, the trend in recent years to throw the idea of creating new ‘special’ courts at anything and everything under the sun has only added to the jungle of judicial confusion and misuse of these special courts (the anti-terrorism courts are a classic example, being inundated with ordinary crimes labelled ‘terrorism’ by our too-clever-by-half law enforcers and prosecutors, without any positive outcome from the logjam of cases pending). The solution does not lie in creating more ‘special’ courts but in streamlining the normal judicial system to make it more efficient and trustworthy, thoughts shared recently by none other than Chief Justice of Pakistan Asif Saeed Khosa.
The federal cabinet’s blind leap headlong into the announcement of setting up media tribunals, not unexpectedly, elicited a strong negative reaction from the media bodies, including the All Pakistan Newspapers Society (APNS), the Council of Pakistan Newspaper Editors (CPNE), Pakistan Federal Union of Journalists (PFUJ) and the Pakistan Broadcasting Association (PBA). The Human Rights Commission of Pakistan (HRCP) and the political opposition have also come out strongly against the government’s proposal. The government seems to have been rocked onto the back foot by the response, prompting it to beat a hasty face-saving retreat with the lame damage control statement that all ‘stakeholders’ would be taken on board before any decision is finalised in the matter.
The government’s anti-democratic mindset has been betrayed by this foolish move. Federal cabinet ministers are expected to know the provisions of Article 19 of our Constitution, enshrining freedom of the media and expression as central to democracy, as they should be. If redressal of complaints mechanisms in place like the Pakistan Electronic Media Regulatory Authority’s (PEMRA’s) Council of Complaints or the Press Council of Pakistan (PCP) are found unsatisfactory, the solution is not to throw the baby out with the bathwater but rather seek tightening of the procedures of these bodies. They do of course suffer from being government set-ups, with all the negative attributes associated with state-controlled regulatory bodies. Unfortunately, the media, both print and electronic, has been discussing drafts of a self-regulatory architecture or regime for decades without any conclusion or outcome. That has left this space open to governmental intrusion and control.
What is the historically evolved and currently accepted role of the media in democracy? Current wisdom, gleaned from around three hundred years of experience since the print media first appeared, joined subsequently by the electronic, points in the direction of the media’s role of a watchdog of the public interest. In this role, the media acquired over time the courage and conviction to speak truth to power. Anything less would today be considered a disservice to democracy and the highest ideals of mankind.
Incidentally, one does not know at times whether to laugh or to cry at the manner in which distorted understandings become accepted shibboleths in our milieu. Take for example the description: ‘media is the fourth pillar of the state’. The bright spark who may have coined the phrase in Pakistan was obviously inspired by the phrase ‘fourth estate’. But whether by a slip of the pen or conscious stretching of the definition of the role of the media to a ‘fourth pillar of the state’, the formulation by now is solidly entrenched amongst our journalists and writers, some of whom are highly educated, bright and experienced. What is the difference between these two formulations?
The phrase ‘fourth estate’ owes its origins to the French Revolution of 1789, which overthrew the monarchy and established a Republic. In political parlance in France at the time, there were three classes or ‘estates’ in society, the clergy (church), nobility (aristocracy), and commoners (the people). The relatively newly emerged and growing print media came to be dubbed the ‘fourth estate’ to reflect its increasing prominence and power in informing society about the public interest. We in Pakistan have gone a step further and in dubbing the media the ‘fourth pillar of the state’ have emasculated the idea of a public watchdog. The implication of this unthinking formulation also is that the media is in some mysterious ways part of the state. Nothing could be a bigger travesty or joke with the role of the media in a democratic society as it has evolved over time.
Repressive, anti-democratic regimes attack the media first and foremost when it points out flaws or mistakes of the incumbents. When challenged by the masses, such regimes mistakenly think throttling the media will kill protest. Egypt’s revolution that began in 2011 with the Arab Spring but was derailed by the military coup that brought Abdel-Fattah el-Sissi to power in 2013, seems to have found a new lease of life with mass protests breaking out recently in all major cities. Of course these were quelled since they were largely spontaneous and suffered from the same weakness as the movement in 2011: no organised force to channelise the people’s protest towards a seizure of power. The Muslim Brotherhood emerged from this struggle as the only organised political party, won the election in 2012, but was overthrown by the military at a time when it foolishly pushed for Islamisation, thereby losing the support of the millions of participants in the Arab Spring who did not subscribe to the Muslim Brotherhood’s religiously based programme. The Sissi regime too has resorted to the same tactics of browbeating the media, despite the fact Egypt lacks a media free of state control!
Military dictators and anti-democratic regimes instinctively try to quell a free media and expression, knowing their power to influence public opinion. But this paranoia, whether in the case of Sissi or Imran Khan, sometimes proves a stretch too far.

Business Recorder Editorial September 24, 2019

Nepra joins anti-NAB chorus

The National Electric Power Regulatory Authority (Nepra) has now joined the growing chorus of critics of the National Accountability Bureau (NAB). In its State of the Industry Report 2018, NEPRA has challenged the intrusion into its affairs by NAB. The Report says almost all of the projects on which Nepra had made power tariff determinations have been questioned by NAB, and the way the investigations are being conducted has completely stifled the morale of Nepra’s professionals. Nepra laments that the boundaries of its regulatory jurisdiction have been breached by NAB, boundaries beyond which NAB cannot intervene. The Report emphasised that a holistic approach was urgently required so that the confidence of the power sector in general and that of its regulator Nepra in particular, were not unduly undone. It is significant that one of the Director Generals Nepra, Insaf Ahmad, has been detained by NAB and is under trial. This issue has apparently been raised at the level of Prime Minister Imran Khan. Former senior officials of Nepra are also facing investigations, which has sent a negative message to incumbent officials. The thrust of Nepra’s report points in the same direction as the effect of NAB’s activities vis-à-vis the bureaucracy, businessmen, and opposition politicians. The bureaucracy, it is being reported since even before the Pakistan Tehreek-i-Insaaf (PTI) government came to power in 2018, has been paralysed in its decision making because of the fear of being ‘nabbed’ by NAB. Business confidence has plummeted to an all time low because NAB has not spared those entrepreneurs accused of corruption, whether for themselves or allegedly as front men for opposition political leaders. Parliament and democracy stand emasculated because top opposition leaders are almost all behind bars, the Pakistan People’s Party (PPP) leader and former leader of the opposition in the last parliament, Syed Khursheed Shah, being the latest elevated to this ‘rogue’s gallery’.

The problem with NAB’s ‘standard operating procedure’ is that persons suspected of wrongdoing are arrested even before a charge or reference has been filed against them. NAB’s excruciatingly slow investigation process follows, which often leaves detainees languishing behind bars for months or even years. This track record points towards the incapacity of NAB to conduct investigations speedily and efficiently. There is also concern about the level of expertise available in NAB to tackle complex technical issues as demonstrated by former prime minister Shahid Khaqan Abbasi’s arrest and interrogation in the LNG case. All this underlines the need for building capacity and expertise in NAB to prevent those charged, either before or after references have been formally filed against them, being unnecessarily incarcerated for long periods while NAB’s snail-paced investigations merrily wind their way without reaching any conclusive outcome. The political opposition has suggested that the NAB chairman’s powers of arrest should be done away with and arrests only made after references are filed and the courts adjudicate the need or otherwise to detain the accused. After all, the jurisprudential principle that the accused should only be detained if there is a danger of them slipping away or abroad needs to be adhered to. And speaking of jurisprudential principles, the NAB process because of the way its law has been crafted, assumes the guilt of the accused ab initio, justifies its arrests on that basis, and leaves the onus of proof of innocence on the accused, thereby turning on its head the long established principle of law and due process that the accused must be considered innocent until and unless proved guilty of the offence. So much so that even Chief Justice of Pakistan Asif Saeed Khan Khosa has weighed in with the expression of concern that the NAB process appears more and more to be partisan political engineering that is rapidly losing its credibility. Of course the very opposition leaders being targeted by NAB must by now be ruing their neglect of the repeal of Pervez Musharraf’s National Accountability Ordinance 1999 and the consequences that have flown from it. To add to the tangled web, the NAB chairman himself has of late been embroiled in controversies about character and uprightness. This whole NAB mess has brought life and work in the country to an undesirable pass. Saner voices and heads need to come together to overcome the negative and malign effects of NAB’s peculiar modus operandi and perceived partisanship.