Daily times editorial Aug 13, 2012

A misplaced effort The cabinet committee charged with investigating the situation in Balochistan and submitting recommendations for a solution to the strife-torn province’s problems has made its first visit to Quetta. Headed by Federal Defence Minister Naveed Qamar, the committee attempted to consult all stakeholders amongst the political forces in Balochistan. However, the response to its invitation for talks was, to put it politely, mixed, and more bluntly, without meaningful results. Part of the problem is that the committee kicked off its visit with the message from one of its members, Federal Information Minister Qamar Zaman Kaira, at the airport on landing that slogans being raised for the independence of the province “would not be tolerated”. Kaira’s argument was that the autonomy issue of the province has been resolved. He said the federal government was serious about addressing the grievances of Balochistan as was evident from the apology for past excesses extended by President Asif Ali Zardari in his inaugural address to parliament after taking office, despite the fact that he was not personally responsible for those excesses. Kaira reiterated the steps the federal government had taken to eradicate the sense of deprivation of the people of the province by pointing to the NFC Award, the Aghaaz-e-Haqooq-e-Balochistan package, giving jobs to youth, etc. These statements, however, were unlikely to win over the estranged Baloch, even those who were willing, with all their reservations, to actually meet the committee. The meetings with the JUI-F, BNP-Awami, PKMAP and JI yielded little, if anything. The National Party did not turn up. It stated later that there was no purchase in meeting toothless committees. The BNP-M had not been invited. In any case this party has stated that it will not meet with the federal authorities unless and until international guarantors are involved, a reflection of the state of mistrust. The JUI-F stated after its meeting that it had little hope of a solution. In his press conference after the committee’s round of meetings and deliberations, Naveed Qamar at least conceded that all the steps taken so far may not be enough. The fact is that the sense of alienation in Balochistan is so complete that even talking to those nationalist parties willing to engage is unlikely to make much difference. And attempts to depreciate the standing of those engaged in insurgency in the mountains or leading the movement from abroad will certainly not help a solution either. If the committee was making partially conciliatory noises in Quetta, the irrepressible Federal Interior Minister Rehman Malik in Islamabad on the same day was still droning on about the ‘foreign hand’ in Balochistan’s troubles. If Pakistan’s history is anything to go by, attempts to lay everything at the door of foreign hands, thereby turning a blind eye to our own responsibility and culpability for trouble, has never worked in the past and is unlikely to now. If anything, such red herrings only make matters worse and widen the gulf between the two sides. The elephant in the room that the government does not wish to recognise, and certainly not mention, is the role of the military, intelligence agencies and paramilitary Frontier Corps (FC) in the province. The issue of missing persons has been laid at the door of the FC by none other than the Supreme Court. Without reigning in the security forces from pursuing their repressive policies, including the notorious kill and dump practices in the province, no progress may be possible. Second, without finding a credible channel to the guerillas in the mountains and the leadership abroad, such exercises as the one in Quetta will come to naught. The real steps required to win back the alienated Baloch people are: withdraw the FC, account for the missing persons, identify and prosecute those responsible for the dumping of tortured bodies all over the province, provide due compensation to the families of those tortured and/or killed, and start a serious dialogue with those Kaira finds “intolerable”. The government may not like their separatist stance, but without finding ways to bring these forces to the negotiating table, nothing will change and the situation could conceivably produce a disaster for the country.

Daily Times Editorial Aug 12, 2012

Coordinated operations ISI chief Lieutenant General Zaheerul Islam’s visit to Washington seems to be bearing fruit. In a briefing to the Corps Commanders conference chaired by COAS General Ashfaq Pervez Kayani, General Islam reported on his discussions with the CIA chief and other top American officials. The issue that took up the most time in the conference was the problem of increasing cross-border attacks by Pakistani Taliban elements that have found safe havens in Afghanistan after they were routed from Swat and South Waziristan. In a general climate of improving Pakistan-US relations after a year or more of acrimony, reflected also in the foreign office spokesman’s regular briefing to the media, coordination in counter-terrorism efforts seems to be on the agenda. On the political/diplomatic front, preparations are afoot for Foreign Minister Hina Rabbani Khar’s visit to Washington, a trip expected to pave the way for a late September meeting between President Asif Ali Zardari and US President Barack Obama when the former is in New York on a three-day sojourn to attend the UN General Assembly. The reopening of NATO’s supply lines is credited with the improved atmospherics between Islamabad and Washington. The long-pressed demand by the US for military operations against the Haqqani network in North Waziristan has been resisted so far by the Pakistani military on two counts: one, Pakistani troops are too stretched for a major offensive; two, any operation in North Waziristan will be mounted by and at the will of the Pakistani military and not under any pressure from the US. The latter contention has once again been reiterated in ISPR’s press release on the Corps Commanders’ deliberations. Nevertheless, reports state that the military command is contemplating a nuanced operation in North Waziristan after Eid. Drawing on the experience (most of its bad) of previous operations in FATA, the military command envisages scaled-up and targeted operations in North Waziristan with additional troops from other formations and areas. In order to avoid the risk of a wider tribal uprising, the military is planning a two-phase low intensity targeted campaign with ground penetration engaging and securing militants launching direct attacks on the security forces and threatening the ground presence of troops. The success of the operation depends crucially on air operations coordinated with moves on the ground as well as intelligence and border coordination with ISAF forces across the divide. Being a notoriously porous line, the border needs sealing or at the very least forces of the two allies on either side to prevent militants under attack from fleeing across the border. General Islam pressed his US counterparts in Washington to take action against the Pakistani Taliban in the eastern provinces of Afghanistan. So far, so good. However, what has not found mention in any of the reports is the quid pro quo demanded of (or received) by the US. Since the Haqqani network has proved the bête noir of the US/ISAF, the silence on what will happen to them is both intriguing and perhaps ominous. If the Pakistani military is receiving cooperation from across the border against the militants attacking it, has it offered the counter-cooperation demanded against the Haqqanis? Only time will tell. GHQ seems to have take cognizance of the Haqqanis' treachery in giving the Pakistani Taliban safe havens in eastern Afghanistan in areas controlled by them. Whether this is a sufficient condition for ditching these erstwhile proxies is still, however, an open question.

Daily Times Editorial Aug 10, 2012

Finding a middle way The air of confrontation between the government and the judiciary refuses to go away. The Supreme Court’s (SC’s) notice to Prime Minister (PM) Raja Pervez Ashraf to appear on Augusta 27 to show cause why he should not be proceeded against for contempt of court like his predecessor Yousaf Raza Gilani has once again put the cat among the pigeons. The government’s response is yet to be clearly known, despite a statement in some sections of the press by Information Minister Qamar Zaman Kaira that a decision whether the PM should present himself before the court or not will only be taken after consultations. At the last hearing of the NRO implementation case on Wednesday, August 8, the hope that the court too now sought some ‘middle way’ to end the standoff between the executive and the judiciary, as expressed in Justice Asif Saeed Khosa’s advice to the Attorney General (AG) Irfan Qadir to play a mediatory role, dissipated amidst the court’s declaration that it cannot move an inch from its December 19, 2009 NRO judgement. Two reasons for this reversal to a more rigid position have been enumerated by the court. One, a five-member bench hearing the NRO implementation case cannot revisit, let alone revise, the 17-member bench original NRO decision of 2009. Two, the court’s perception was that PM Raja Pervez Ashraf is resorting to delaying tactics in trying to avoid implementation of the court’s verdict on the letter to the Swiss authorities. The latter perception informs the court’s seemingly harsh act of issuing another contempt of court notice to another PM. Reports also state that Law Minister Farooq Naek’s August 7 television interview, in which he had said that the government was contemplating moving review petitions against the NRO judgement as well as the striking down of the Contempt Act, became a further basis for the court’s relatively harsh tone. Those two review petitions have now been moved. Despite this setback to attempts to find a middle way to resolve the standoff, the court still found it convenient to ask the AG to continue his efforts for finding a compromise solution, failing which, the court would proceed further. The AG tried to argue that the court should exercise restraint, but the bench was having none of it, arguing that it has shown restraint but its hand had been forced by non-compliance with its verdicts. What the honourable bench could have gone into is why this ‘non-compliance’ has emerged in the first place. The SC has neither taken account of presidential immunity under Article 248, nor, except in passing remarks about those seeking immunity having to apply to the court for it, attempted an interpretation of this Article. The government side has seemingly been reluctant to be drawn into an argument over Article 248, probably because it is its perception that it will not receive a sympathetic hearing from the SC, rather the reverse. The court’s insistence has begun to invite criticism of its approach, not the least from former Supreme Court Bar Association (SCBA) president Ms Asma Jahangir, whose words reflect the mounting anger against the judiciary in some legal circles. She has squarely accused the judiciary of delivering political rather than judicial verdicts. Her statement is lent at least partial support by the present SCBA president Yasin Azad, who has suggested to the court that perhaps the best solution to the conundrum is for the court to set up a commission to write the by now infamous letter. He has also pointed to the political and economic instability being caused by the air of uncertainty this standoff is producing in and around the country. Perhaps the middle way is not only the best, but also the only way out of this impasse.

Daily Times Editorial Aug 6, 2012

Joint US-Pakistan campaign A Wall Street Journal report reveals that Lieutenant General Zaheerul Islam’s first visit to Washington since taking over as ISI chief may have yielded unprecedentedly hopeful beginnings. After more than a year of acrimonious relations, it was not until the US finally found a way to apologise for the deaths of Pakistani soldiers in the Salala attack that General Islam agreed to make the trip, having postponed it once in June. In his interactions with the head of the CIA, General Petraeus and other high officials of the Obama administration, the General seems to have conveyed two messages, one startlingly new, one old. The new message in essence recognizes that the Haqqani network, once the ISI’s proxies, have gone rogue. Their nexus with the Tehreek-i-Taliban Pakistan (TTP) has been transformed into an alliance in which the Haqqanis attack the US/NATO forces in Afghanistan, while allowing the TTP to use safe havens in the eastern provinces of Afghanistan in the Haqqanis' control to attack Pakistani troops across the border. It follows logically from this development that Pakistan and the US have a mutual interest in cooperating against what may increasingly become a common threat to both. The ‘division of labour’ between the Haqqanis and the TTP may not hold, particularly if Pakistan and the US have agreed to conduct a joint campaign against the Haqqanis and TTP. Naturally the operational details of this campaign have not been revealed, but they do pose ticklish questions. For example, if Pakistan has agreed to an operation against the Haqqani network in North Waziristan, how would this be conducted and by whom? If Pakistani forces launch the military offensive in North Waziristan, and the US/NATO move against the TTP in the border areas, this would require an unprecedented level of cooperation between Pakistan and the US. In some respects, this would be the resurrection of the old (but hardly tried) ‘hammer and anvil’ strategy, in which militants fleeing military offensives are prevented from fleeing across the border to safety. Although the Wall Street Journal expresses scepticism whether this level of cooperation between Pakistan and the US will be possible, given past differences, it also says the level of trust is higher as a result of General Islam’s meetings. The old message concerned Pakistan’s demand for a stoppage of drone attacks on Pakistani soil, a demand not so far conceded by Washington. Islamabad’s argument is that the drone attacks are not only a violation of Pakistan’s sovereignty, they are producing the unintended consequence of strengthening the extremists’ recruitment. That may well be because of the effect of collateral casualties, but the problem is that so far at least, the Pakistani demand provided no alternative to taking out prominent militants through drones in the absence of any Pakistani military action against the Haqqanis. Now, if the new scenario becomes a reality, the Pakistani demand could gather pace and even acceptance. Operation Tight Screw, as the North Waziristan campaign has been dubbed, could provide the opening for the US to reconsider the drone campaign in favour of other arrangements to build Pakistani capacity for the purpose. Both sides are discussing a refurbished counter-insurgency approach that does not exclusively focus on killing militants, but puts in place the structures of governance that would help prevent a resurgence of the extremists after the first flush of the military offensive is over. In other words, the ‘clearing’ operation must be followed by an efficacious ‘holding’ operation. This wisdom is obviously based on the experience of the Swat and South Waziristan campaigns of recent times. After initial military success, the problems of preventing the militants from once again infiltrating back into cleared areas and restarting their activities can only be combated by empowering the local people with the political, economic, and if need be military means to prevent a militant resurgence. Scepticism notwithstanding, if a turn has been taken towards recognising the Haqqani network as enemies of Pakistan for helping those waging war against the state (the TTP), this could be a historic positive.

Daily Times Editorial Aug 5, 2012

Contempt law struck down In a 21-page short order, the Supreme Court (SC), expectedly, has struck down the Contempt of Court Act 2012 (COCA 12). Expectedly because reservations had been expressed about the law even before it came up for hearing as a result of 27 petitions filed against it. The best legal brains of the PPP, Senators Aitzaz Ahsan and Raza Rabbani had expressed their view in the house that the law as it stood was flawed. The SC has focused on those flaws, and found them so fundamental that instead of asking parliament to revise the law and excise or redraft the offending provisions, has decided to get rid of it altogether. The short order declares the law unconstitutional, and therefore void from the date it was promulgated, July 12. It describes the legislation as an attempt to curtail the powers of the courts. As a result of the order, the Contempt of Court Ordinance 2003 stands revived. The court argues that the Ordinance, despite not being promulgated as an Act of parliament, enjoys the protection of Article 270AA(3) of the constitution, inserted by Musharraf. The striking down of COCA 12 has ‘cleared’ the way for action by the court against Prime Minister Raja Pervez Ashraf at the next hearing of the NRO implementation case on August 8. The order reiterates that the judiciary has never claimed supremacy over other institutions of the state, but has a duty to interpret the law and constitution. Pending the detailed judgement to follow, what the short order offers in terms of the grounds for the striking down of COCA 12 are that it sets up a special class of top political office holders who were declared as enjoying immunity from contempt of court for acts committed or actions taken in the discharge of their duties. This has been declared discriminatory and violative of the provisions of the constitution that declare all persons equal before the law. The court also took issue with the provisions of the Act that suggested the actual proceedings of contempt cases could be controlled or tampered with by the executive, a privilege hitherto exclusively the chief justice’s. The legislature, the short order says, cannot give itself this right, which would be deleterious for the independence, respect and dignity of the judiciary. The verdict has produced a flurry of activity at the top of the PPP hierarchy, with one meeting being held in the presidency after the verdict was announced, and another planned for today to deliberate on the implications of the ruling and the best way forward. On the day of the next hearing of the NRO case, August 8, the parliamentary party of the PPP has been summoned to meet. Some analysts have interpreted this toing and froing as signs that the ruling PPP may be contemplating its various options, including sacrificing another prime minister to follow in the footsteps of Yousaf Raza Gilani, bringing another contempt law before August 8, or even deciding to go for general elections. Of course the last course would be a decision taken on political considerations, and not without settling the issue of the caretaker government after consultations with the opposition. Perhaps the last word on the SC’s efforts to safeguard the respect, dignity and power to punish contemnors of the courts has not yet been said. The political temperature in the country has risen a notch or two after the verdict. All political forces must be shuffling their feet in anticipation of a possible general election before the scheduled date of February 2013. The court, however, having delivered its verdict, should reflect on where the question of its respect and dignity stands at the present conjuncture. These are categories that cannot be summoned at will or through the coercive power to punish. They are earned over time through the judgements of the courts, and only if such judgements pass the test of scrutiny of being impartial, fair, and in the interests of justice, without any shade of controversy or accusations of overstepping the jurisdiction of the court. On this last count, it must be said with the greatest respect to Their Lordships, the jury is still out.

Daily Times Editorial Aug 2, 2012

NATO supply deal, finally In a display of exquisite timing, Pakistan and the US signed the long delayed agreement on the restoration of NATO supplies for Afghanistan just one day before the new ISI chief, Lieutenant General Zaheerul Islam, began a maiden three-day visit to Washington for talks with the head of the CIA. The agreement, according to press reports, runs till 2015, one year after the US/NATO forces are scheduled to depart. It is renewable for one-year intervals beyond that date. The agreement will pave the way for the release by the US of the Coalition Support Funds owed to Pakistan and held up for two years, worth $ 1.18 billion. The agreement prohibits arms and ammunition being transported through Pakistan for NATO/ISAF, but permits shipments of lethal cargo for the Afghan armed forces. Although the containers will be scanned at the port of entry (Karachi) and the exit points at Chaman and Torkham, and also be tracked with special radio chips, it is not clear how the Pakistani authorities will distinguish between shipments of weapons for the Afghan armed forces and NATO/ISAF. There is a clause in the agreement that allows Pakistan to refuse any shipment that falls outside agreed parameters, and even a quit clause if relations hit a bump in the road again. After the interminably delayed apology by the US for the Salala incident, Pakistan dropped its demand for an increase in container fees. No taxes or duties will be imposed on the cargo but commercial carriers will have to pay a fee. New fees can be introduced for quick transfer of cargo. No warehousing or storage facilities will be provided by Pakistan, and no new NOCs will be required, but Pakistan will ensure security. Containers for Afghanistan will have to return via Pakistan, and could conceivably carry US/NATO weapons and equipment being withdrawn. The agreement as revealed is not very different from existing practice, but it does have the benefit of being written down to avoid ambiguity and differences. One important issue that had dogged the long drawn negotiations to arrive at the agreement seems either to have been missed or may be discussed separately: the issue of damage to Pakistan's highways under the enormous load of these convoys. In another development, US ambassador-designate to Pakistan Richard Olson, who brings to his new job considerable experience as the deputy head of mission in Kabul until his new assignment, in testimony to his confirmation hearings in the US Congress has expressed his intent to build on the opportunity provided by the restoration of NATO supplies and the better atmospherics between Washington and Islamabad. Of course, the contentious issues that have divided the two ostensible allies in recent years will remain, including the issues of the Haqqani network and the drone attacks. No doubt these will be on the table in the talks in Washington between the ISI and CIA chiefs. Recent reports suggest that the Pakistani military is less enthusiastic about the Haqqani network since it offered the Tehreek-e-Taliban Pakistan safe havens across the border in its areas of influence in order to mount cross-border attacks on Pakistani security forces. Other reports, including Pakistani ambassador to the US Sherry Rehman’s remarks to a conference in Aspen, Colorado, suggest that the military is reassessing, if it has not abandoned, the notion of strategic depth in Afghanistan that provided so much of the underpinning for hedging Pakistan’s bets in post-withdrawal Afghanistan through its jihadi proxies. If this proves true, it not only reflects a recognition by the military that the dynamics of the situation have changed, not the least of which is perhaps a divergence between it and its erstwhile proxies, but that a Taliban push for exclusive power in Kabul after 2014 would only ignite fresh conflict from which Pakistan may not escape unscathed. That recognition could perhaps open the door for Pakistan to be part of the endgame in a positive way, rather than at odds with its ostensible western allies. This may prove the better outcome, both for Afghanistan as well as Pakistan, not to mention the region and the world.

Daily Times Editorial July 30, 2012

Call to judiciary Federal Law Minister Farooq H Naek these days is busy dilating on the new contempt of court law as well as the separation of powers envisaged in the constitution. The other day in Karachi, he returned to his current theme while saying that there was a public perception that the judiciary is against the PPP government. The responsibility for changing this perception, Mr Naek argued, lay with the Supreme Court. He went on to stress that decisions taken by the president, the premier and ministers were protected under Article 248 (wrongly reported in the press as Article 242) and could not be challenged. On the separation of powers schema of the constitution, the Law Minister reiterated the government’s contention that the role of running the government was the responsibility of the executive, legislation that of parliament, and ensuring implementation of the laws that of the judiciary. Naek said there was nothing in the new contempt of court law that court decisions do not apply to the prime minister or president. Immunity to them was granted by the 1973 constitution. He argued that along with an independent judiciary, an independent judicial system comprising upright judges and law officers was necessary for a free judiciary, and stressed the need for changes in the existing system without going into any details of what changes he thought were unavoidable. The government, he said, accorded due honour and respect to the judiciary and was not interested in clipping its powers. This was a direct rebuttal of some speculations in recent days that the government may ‘retaliate’ against the judiciary by curtailing its powers. At the same time, the minister went on, the government did not want any confrontation between institutions which, if they operate within their respective ambits, would strengthen democracy. Since there has been so much sound and fury (signifying misplaced concreteness) of late regarding relations between the executive and parliament on the one hand and the judiciary on the other, particularly in the context of the NRO implementation case, which has led to one prime minister being sent home and a similar sword of Damocles dangling over his successor, it may be useful to briefly revisit the provisions of Article 248: “Protection to President, Governor, Minister, etc. (1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be answerable to any Court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province. (2) No criminal proceedings whatsoever shall be instituted or continued against the President or a governor in any Court during his term of office.” Jurisprudence has distinguished between the immunity from criminal (and civil) liabilities of the named officials, and the liability of the federation or a province, which can be sued. The protection contained in the proviso to clause (1) extends to the person of the officials named, not to any action taken or order passed by them. The immunity is in the nature of an exception to the general rules that no one is above the law, and must be strictly construed accordingly. In the light of these clear provisions, it is inexplicable how and why the Supreme Court has been brushing aside the meaning of this Article. With the greatest respect to His Lordships, we rest our case.