Business Recorder Column Sept 18, 2017

Have the people spoken? Rashed Rahman Not unexpectedly, the PML-N has won the NA-120 Lahore by-election. Kulsoom Nawaz has been elected to parliament but unfortunately is under treatment in London. After she recovers, it remains to be seen whether her health will allow active participation in politics. By-elections are seldom an accurate barometer of political trends or the electorate as a whole’s predilections. Nevertheless, they do provide indicators of which way the wind is blowing. This by-election had a great deal riding on it in the context of the July 28, 2017 verdict of the Supreme Court disqualifying Nawaz Sharif and the subsequent dismissal of the latter and his children’s review petitions by the court. Imran Khan had in his usual overblown style cast the by-election on Nawaz Sharif’s vacated seat as a battle between the latter and the judiciary. If that formulation were to be accepted, the result has not turned out as Imran had hoped or predicted. Having said that, what has the result of the NA-120 by-election indicated? Since this constituency has been Nawaz Sharif’s stronghold (he has been elected three times from there), the final tally of votes, 61,254 for the PML-N, 47,066 for the PTI, suggests that the culture of patronage is still alive and kicking. However, the PTI’s candidate Dr Yasmin Rashid’s making inroads into the PML-N’s vote bank, with the margin of victory having shrunk from about 40,000 votes in 2013 to 14,000 now, could mean some element of disappointment amongst the people of the area at Nawaz Sharif’s failure to deal with the constituency’s problems and meet the people’s needs and aspirations. This could be a reflection of a breach in the implied social contract of votes in exchange for addressing these issues. The turnout was near the norm from past experience of by-elections: 33-36 percent. Of the 44 candidates in the field, 41 have had their deposits confiscated for failure to garner sufficient votes, including the PPP (fourth with 2,692 votes) and the Jamaat-i-Islami (105 votes). Surprisingly, the Jamaat-ud-Dawa’s recently launched Milli Muslim League came in third with 4,268 votes. How the mighty have fallen. Asif Zardari tried to brush away this pathetic showing with inanities in a press conference in Peshawar yesterday, but this cannot hide the decline of the once mighty PPP. Although polling was largely peaceful, the usual set of complaints and criticism of the by-election came forth from both main contending parties. Federal Railways Minister Khwaja Saad Rafique complained about the Election Commission of Pakistan’s refusal to extend the voting time despite voters turning up in bigger numbers towards the end of the day. PML-N also alleged that many parchi holders were denied their right to vote and that 60 of their campaign workers were picked up by the law enforcement agencies the night before the polling. With a PML-N government in power in Punjab, if this is true, some other agency must have been responsible for this skullduggery. In turn Dr Yasmin Rashid, the PTI’s losing candidate, has raked up the issue of about 23,000 unverified votes in NA-120, on the basis of which she has vowed to challenge the election result. This inability to lose with some grace is typical of the PTI’s political culture, betraying an anti-democratic mindset and a sense of entitlement beyond reality and the facts. Remember the hullaballoo Imran Khan raised about four seats in the 2013 general elections that led finally to the prolonged sit-in by the PTI in Islamabad in 2014? It seems that when the PTI is unable to win electorally, it refuses to accept the results and perhaps is tempted to take advantage of any ‘shortcuts’ that may be on offer. This trend introduced in politics by the PTI may result in a free-for-all, winner- (by any and all means) takes-all syndrome that is fraught with the risk of even bigger crises and jolts to the democratic system. Senator Farhatullah Babar argued the other day on the floor of the house that micro-management of politics from behind the curtain (back seat driving, as he put it) risks greater conflict and may pose a serious new threat to the democratic project. That suggests a greater adherence by all stakeholders to the existing rules of the game, until such time as there is a consensus across the board on changing those rules to ensure greater transparency and credibility in the electoral process. What the impact of the PML-N’s win in a beleaguered atmosphere could have on the larger political environment may only become clear once the dust has settled in NA-120. But there is a troubling theory doing the rounds these days. This envisages the powers-that-be having decided on a course of incremental decapitation of the political class through the accountability process, leaving at least the main parties headless and arguably adrift. Reference is made as proof of this theory to the National Accountability Bureau’s initiation of references against Nawaz Sharif, his children and Finance Minister Ishaq Dar, reopening decided cases against Asif Zardari, and perhaps others. It is argued that the tactic of knocking out Zardari’s lieutenants from under him through corruption charges has not yielded the results perhaps expected. So the need is being felt to go for the top leadership, but this time across the board. Imran Khan had better be careful since his hopes for support from the establishment to come to power may end up in him being used once again for limited goals and then being dumped again. Even if this theory is correct and is incrementally implemented, it will neither succeed in uprooting corruption, which is endemic to the existing system from top to bottom, nor in reducing the main parties to nothingness, if the result of the NA-120 by-election is any guide. If, however, this project succeeds in decapitating the political class, that would open up a dangerous vacuum of leadership at the heart of politics, with uncertain results and fallout. One wonders if the authors of this scheme have thought about what or who would replace the discredited leadership. The discontent with our democratic project as it stands is rooted in the dashed hopes for continuity of the democratic process helping to evolve a transition to a better leadership for the country. However, this hope has failed to fructify because of dynastic politics and the domination of strong individual leaders. In such a milieu, new talent is thwarted by the lack of any internal democracy in the political parties worth the name and the fact that only the filthy rich can afford to take part in elections. The existing political class has a vested interest therefore in a continuation of this situation. This means electoral and democratic reform that could help the emergence of a second rung leadership groomed to take over from their elders is likely to go abegging. A ‘democratic’ system without the ability to overcome its obvious class biases and other flaws is a ‘system’ always teetering on the brink of perfect storms to come. rashed.rahman1@gmail.com rashed-rahman.blogspot.com

Business Recorder Editorial Sept 16, 2017

Review petitions’ dismissal Not entirely unexpectedly, the five-member larger bench of the Supreme Court (SC) has dismissed the review petitions moved by the Sharifs against the July 28, 2017 judgement that disqualified Nawaz Sharif as prime minister. Justice Asif Saeed Khosa, who headed the larger bench, announced the short order dismissing the review petitions “for reasons to be recorded later”. That brings to an end the more than a year and a half affair that began in April 2016 when the International Consortium of Investigative Journalists exposed the Sharifs’ offshore assets as part of the Panama Papers. In its July 28, 2017 verdict, the SC had relied on Articles 62 and 63 of the Constitution, which respectively lay down the grounds for disqualification of elected representatives and the qualifications for them to be elected. Since the SC in that verdict had relied on Article 62(1)(f) to disqualify Nawaz Sharif for failing to declare his undrawn salary from his son’s company in Dubai, the issue of the tenure of his disqualification remains unresolved. Article 62(1)(f) does not specify the tenure of disqualification. If precedent be something to go by, former prime minister Yousaf Raza Gilani was disqualified by the SC for contempt of court and sentenced till the rising of the court to remain ineligible for election for five years. A separate five-member bench of the SC is to determine the disqualification period of Nawaz Sharif. While retaining the right to disagree with the July 28, 2017 judgement, and even subjecting it to reasoned criticism, the Sharifs should now refrain from throwing barbs at the superior judiciary and instead prepare to fight their legal battles in the trial courts poised to take up the National Accountability Bureau’s (NAB’s) references against Nawaz Sharif, his children, and Ishaq Dar. Even though the review petitions’ dismissal came on the eve of the by-election in Lahore’s NA-120, Nawaz Sharif’s vacated seat, it would be a mistake to rely on street power or agitation as a defence against Nawaz Sharif’s disqualification or the references now dangling over the Sharifs’ heads. The defence counsel of the Sharifs did express concern before the larger bench regarding a fair trial for their clients in the presence of a judge of the SC overseeing the trial procedures. However, the larger bench attempted to reassure the petitioners that no observation of the SC will influence the trial court and no prejudice will be allowed. The larger bench also explicated the position that the SC had only addressed the constitutionality of the matter, while the criminal side would be dealt with by the trial court. The SC’s July 28, 2017 verdict and now the dismissal of the review petitions have left the legal community divided in their interpretation of the jurisprudential implications of the judgements. These views, especially critical ones, have found an echo in parliament. On the International Day of Democracy on September 15, 2017, Senate Chairman Raza Rabbani and PPP Senator Farhatullah Babar made trenchant comments on the current emerging situation. The Senate Chairman reiterated the constitutional position that all state institutions must respect the trichotomy of power amongst parliament, the executive and the judiciary. Raza Rabbani argued that any state institution that misused its power was undermining democracy. There is a need, he emphasized, to learn from our mistakes and strengthen parliament if the democratic project is to succeed. Senator Farhatullah Babar referred in cryptic manner to the totally new form of threat to democracy. He likened it to a model of back seat driving without responsibility or accountability. The person at the wheel, he added, was outmanoeuvred by the real controllers of vital levers on the rear seat. Such a construct, he went on, was fated to meet a disastrous accident. So the argument rages on and is unlikely to go away soon. The Sharifs nevertheless must fight the fight of their lives through legal, not street power, means, in a mature adherence to the strategic patience they need to embrace.

Business Recorder editorial Sept 13, 2017

FATA mainstreaming The federal cabinet has on September 12, 2017 approved the extension of the jurisdiction of the Supreme Court and Islamabad High Court to the Federally Administered Tribal Areas (FATA) as the first step towards implementation of the long overdue reforms in the country’s troubled tribal areas. A bill for this purpose will soon be presented in parliament and after its passage, the colonial legacy of the Frontier Crimes Regulation, which amongst other controversial anomalies allowed collective punishment for crimes and other transgressions, would be abolished, followed by the normal laws of the land being enforced in FATA in a phased manner. This effort will be accompanied by a massive development programme of some Rs 110 billion, to be financed by allocation of additional resources from the divisible pool after the concurrence of all stakeholders. It bears mention that the provinces have yet to concur with this development package. A National Implementation Committee (NIC) under Prime Minister (PM) Shahid Khaqan Abbasi has been constituted to oversee the political, legal, administrative and developmental mainstreaming of FATA. The NIC in its first meeting last week decided to install a transitional mechanism to be headed by a chief operating officer for the transitional period. Besides the members of the FATA reforms committee that initially drafted the FATA programme earlier this year, the PM, COAS, Khyber Pakhtunkhwa (KP) Chief Minister and the Commander of the 11th Corps have been included in the NIC. The PM has directed the Minister for Law and Justice to fast track the legislative and administrative measures for mainstreaming the tribal areas so that the people of FATA can enjoy the same fundamental rights as the rest of the country (notwithstanding the sad fact that those rights are available to the rest of the citizens of the country more in the breach). The NIC has also approved fast track recruitment of police and the redeployment of some elements of the Frontier Constabulary, after training, to perform police functions in FATA. To put the whole scheme in some perspective, in March 2017 the federal cabinet under former PM Nawaz Sharif had approved a series of steps for the proposed merger of FATA with KP and a 10-year reform package. In May 2017, the government convened a special session of the National Assembly (NA) to present three bills, including the 30th Constitutional Amendment, in the light of the FATA reform committee’s recommendations. However, the former PM withheld the bills after Mahmood Khan Achakzai and Maulana Fazlur Rehman forcefully argued against the merger. Some analysts see this as the FATA merger being tangled in an electoral cobweb. If and when FATA is merged with KP, the latter’s provincial assembly seats will increase by 23 but there may be some loss of seats in the NA and Senate, the former if FATA NA seats are reduced on the basis of population, the latter because FATA’s Senate seats will cease to exist. General Musharraf’s regime legitimised the raising of FATA’s NA seats to 12, double its share in population, by inserting a table as Clause 3 of Article 51 detailing the seats of each province and area. However, this insertion is in contradiction with Article 51(5), which enjoins seat distribution in accordance with population. The changes in seats allocation and possible delimitation of constituencies in the light of the 2017 census have the potential to create problems amongst the stakeholders unless all these anomalies are dealt with in consonance with the merger proposal. When reform and mainstreaming of the tribal areas held in thrall to the strategic and control considerations of the colonial occupying power for so long are contemplated, perhaps the wisest course is to make haste slowly, taking into consideration the potential problems listed above plus any others that may crop up during the incremental exercise. There is of course no going back on abolishing the draconian colonial regime and structures that have deprived the tribal people of their rights as citizens for so long. However, since the process is complicated and fraught with potential pitfalls, the best path may be to introduce reforms in a considered manner while taking on board all stakeholders, but especially the people most affected by the changes, i.e. the people of FATA.

Business Recorder editorial Sept 12, 2017

The elephant in the room The opening ceremony of the new judicial year at the Supreme Court (SC) in Islamabad on September 11, 2017 saw a number of speeches regarding the dispensation of justice in a democratic society. Chief amongst the speakers was the Chief Justice of Pakistan (CJP) Mian Saqib Nisar, who dilated on the necessity of the independence of the judiciary for a true democracy. He added that each state organ needs to perform its duties and functions in accordance with the constitutional scheme of things, particularly the three pillars of the state, i.e. the executive, legislature and judiciary. Without making express reference to the July 26 Panamagate case verdict, the CJP, perhaps responding to the criticism that has been heaped on the judgement, clarified that the SC does not write judgements to please anyone or settle scores, but renders judgements in the fine scales of justice. He explicated the requirement of judicial review whenever any authority or functionary of the state acted against the constitution or law, an explanation most present on the occasion took to be a reference to former prime minister Nawaz Sharif. Express reference or no, the Panamagate verdict appeared to be on a lot of minds at the full court reference, assuming, if one may so put it, the avatar of the elephant in the room. Most speakers too, like the CJP, did not make any direct mention of the verdict but it seemed to cast a long shadow over the proceedings. Attorney General (AG) Ashtar Ausaf argued that recent events do not augur well for the trichotomy of powers that underlies the development of a constitutional democracy. He regretted the fact that political issues were brought before the court instead of being resolved on the appropriate forums for the purpose, chief amongst which is parliament. Most analysts agree that Nawaz Sharif made the fatal mistake of not strengthening parliament during his four year stint as prime minister and this flaw contributed to his ouster through a petition that the SC had initially rejected, but which was later taken up in the backdrop of Imran Khan’s threatened fresh lockdown of Islamabad after the Panamagate revelations last year. Touching on the role of the media, the AG expressed the hope that it would not evolve into a parallel ‘people’s court’, a reference perhaps to the readiness of the media, especially electronic, to pronounce judgement on judicial matters even before they have gone through proper judicial proceedings. On the other hand, Pakistan Bar Council Vice Chairman Mohammad Ahsan Bhoon rejected criticism of the verdict without reasoning when all the facts were available on record. He was confident that the verdict would eventually prove a hallmark in the annals of history, helping to bring on the basis of the principles enunciated therein other institutions, hitherto considered sacrosanct, within the accountability net. Supreme Court Bar Association (SCBA) President Rasheed A Rizvi was less sanguine about the verdict’s place in history. He expressed his bitterness regarding the inclusion of members of Military Intelligence and the ISI in the Joint Investigation Team set up to probe the matter. Citing the Asghar Khan case, he argued that military interference in political matters evoked finger pointing at both the military and, in the Panamagate case, at the judiciary itself, considering the political sensitivity of the issue. He forcefully argued that the SCBA did not believe that the only independent and honest people capable of an impartial inquiry against a sitting government belonged to the armed forces. Corruption, he added, was a massive challenge and the judiciary had to fight the menace but it should be seen to do so impartially for the sake of its own reputation and standing. He pleaded for the Imran Khan petition that led to the disqualification of Nawaz Sharif not to be the last such but instead to widen the scope of accountability to include other prominent individuals, families and institutions. The arguments raging around the SC verdict in the Panamagate case are unlikely to abate soon. But one aspect that has been highlighted by the affair is the need for a forum for appeal against the verdicts of the SC, particularly when it takes up a matter under Article 184(3). During the discussions on the 18th Amendment in 2010, one proposal was to create a constitutional court to provide such a forum but alas consensus could not be built around the idea and it was eventually dropped. But the need has manifested itself as never before in the wake of the Panamagate verdict. Ideally, it should be the judiciary itself that should point the possible way forward in this eminent regard.

Business Recorder editorial Aug 19, 2017

Council of Common Interests reconstitution Prime Minister Shahid Khaqan Abbasi has reconstituted the Council of Common Interests, but the move has raised some questions that need answering. In the first place, contrary to the provisions of Articles 153(1) and 154(3), which lay down that the Council of Common Interests is appointed by the President on the advice of the prime minister, the new reconstituted Council of Common Interests was announced by the prime minister with seemingly no reference to the President. Second, whereas the eight members of the Council of Common Interests include the prime minister, the chief ministers of the four provinces and three other members, the reconstituted Council of Common Interests has replaced two federal ministers from Khyber Pakhtunkhwa (KP) and Balochistan with two federal ministers from Punjab. Although replacing the federal ministers for overseas Pakistanis and religious affairs with the federal ministers for finance and industries makes sense, this has resulted in the Council of Common Interests now having four members from Punjab and six of its members belonging to the PML-N. This outcome has raised eyebrows since it is being interpreted as the PML-N government being more interested in consolidating its power than addressing inter-provincial or Centre-provinces matters. The logical corollary of this perception is that it reflects the government has an eye to the looming elections (by 2018 at the latest). If this is correct, it betrays a lack of understanding on the part of the government regarding the fundamentally important role of the Council of Common Interests in the affairs of the federation, particularly at a juncture when the pattern of different parties being in power in some provinces and the Centre has become more or less the norm. The Council of Common Interests is constitutionally mandated to formulate and regulate policies on all matters in Part II of the Federal Legislative List, an outcome of the abolition of the concurrent list through the 18th Amendment. These subjects include the census, electricity, minerals, oil, gas, ports, federal regulatory authorities, the supervision and management of public debt, national planning and national economic coordination. Of these, the major issues to be addressed by the Council of Common Interests and which could be the cause of discord in the federation include approval of the census, national water policy, and the supply of gas to domestic consumers. The affairs of the federation have been a sensitive area in our history. Before the 18th Amendment, the Council of Common Interests met irregularly and relatively infrequently. To address this problem, the 18th Amendment provided that the Council of Common Interests has to meet every 90 days. Such meetings may assume a greater importance now in the light of the sensitive and potentially fraught matters outlined above. The Council of Common Interests should not appear, as the reconstituted one does, as heavily loaded in favour of the Centre and Punjab, where the PML-N is in power. Nor should the reconstitution have been carried out in the arbitrary and constitutionally controversial manner it has. The more credibly that process is carried out, the more the Council of Common Interests would enjoy the credibility to mediate intra-provincial and Centre-provinces issues, which after all is its raison d’etre.

Business Recorder editorial Aug 15, 2017

Bargaining chip After his exertions of the long march from Islamabad to Lahore, former prime minister Nawaz Sharif continues to rail against what he describes as the unjust verdict of disqualification by the Supreme Court. In the process, he has been lamenting the derailing of his development agenda, pointing to the accomplishments of his four-year tenure in the fields of infrastructure and energy. Obviously smarting from his dismissal, he bemoans the chaos in Pakistan during the last 70 years, the most pointed reference being to the breakaway of East Pakistan in 1971 to emerge as Bangladesh because of the failure to respect the people’s mandate expressed through the ballot box. He has expressed the fear that a repetition of such a step could lead to a similar disaster again. Nawaz Sharif has been making the case for a constitutional amendment regarding the provisions of the judiciary’s working. By this he obviously has his eye on Articles 62 and 63 and 184(3). It is plain that for any constitutional amendment to pass muster in the present parliament would require the cooperation of the opposition, especially of the PPP, and especially in the Senate. However, his ‘feelers’ in this regard have been met by a firm rebuff by the Chairman PPP, Bilawal Bhutto Zardari. The young PPP chairman has categorically ruled out any support to the PML-N government’s desire for a constitutional amendment. He argued that given the turmoil in the country, any such move would run the risk of producing a clash between institutions that cannot be afforded at present. Besides, he says, no amendment could benefit Nawaz Sharif’s reinstatement as he has been disqualified by the apex court. He accused the government of striving to transgress all limits after the SC verdict. The PPP, he went on, was practicing the politics of principles and would never come to Nawaz Sharif’s rescue again. Bilawal’s sentiments were echoed by the PPP’s Leader of the Opposition Khurshid Shah, who said it should be left to the next parliament to decide about any amendments to Articles 62 and 63. Sindh Chief Minister Murad Ali Shah also reminded us of Nawaz Sharif’s opposition to amending Articles 62 and 63 while the 18th Amendment was being discussed. The PPP is angry with Nawaz Sharif for failing to appreciate the PPP’s support during the 2014 Imran Khan-led sit-in in Islamabad. In undertones it accuses his government of putting PPP stalwarts like Dr Asim Hussain in the dock. It is also alienated from Nawaz Sharif because of his studied indifference during his four years in office towards parliament, to the extent of hardly appearing in the house. The PPP had been arguing throughout this period that the democratic forces could only chart the path forward through the strengthening of parliament and situating it centre-stage in the state’s institutional structure, but was disappointed by Nawaz Sharif’s ignoring it. In stage whispers the PPP is expressing the view that Nawaz Sharif got what he deserved for this flagrant lapse. Be that as it may, the PPP may just be taking this hard line position more as a bargaining chip than a final stance. What it would take for Nawaz Sharif to overcome the PPP’s stated hostility is not clear. Of late, Nawaz Sharif has waxed nostalgic about the Charter of Democracy he signed in exile with the late Benazir Bhutto, and which he seemed to forget soon after her assassination in 2007. Whether the provisions of the Charter can be revived and provide the foundations for a reconciliation with the PPP is in the realm of conjecture. Having said that, the chairman PPP may learn at some point that the word ‘never’ is never the final word in politics.

Business Recorder editorial Aug 16, 2017

Afghan Taliban’s open letter The Afghan Taliban have taken opportunistic advantage of the Trump administration’s reported struggling with future policy in Afghanistan by addressing an unprecedented open letter to the US President, warning him that the military situation on the ground is “far worse than you realise”. Sending in more troops, the letter goes on, will only result in more self-destruction of men and material. It castigates the Afghan government as “stooges”, “lying, corrupt leaders”, repulsive sell-outs” who care neither for US interests nor those of their own country and are providing “rosy pictures” of the military position. The Taliban boasted that the only reason they were not seizing cities was for fear of civilian casualties. If this last statement is to be believed, it reflects a rare sensitivity on the Taliban’s part regarding innocent lives, something they are not famous for. US troops currently number 8,400, a steep drop from the 100,000 six years ago. The remaining contingent is mainly in a training and advisory role to the Afghan security forces who are struggling to contain the Taliban advance in many rural areas, let alone defeat them. The senior US commander in Afghanistan, General John Nicholson, has requested several thousand additional troops. Influential voices, including Republican Senator John McCain, have urged an “enduring” US military presence. But they are up against scepticism in the White House. US President Donald Trump and several top aides have criticised the years of military intervention in Afghanistan and the high cost of aid to that benighted country. US Defence Secretary Jim Mattis has told reporters the administration is “very, very close” to a decision and all options are on the table. US officials though caution that it will likely take several weeks for a South Asia strategy to be approved. The Taliban have twisted the knife in the administration’s wounds by stating in the open letter that they have noted Trump has “understood the errors of (his) predecessors” and “resolved to thoroughly rethink a new strategy”. It cautioned the US President against a number of warmongering Congressmen and Generals in Afghanistan who were pressing him to keep the war going in order to preserve their military privileges. Foreign occupation, the Taliban went on, is the “main driver of the war” and the private contractors (like Blackwater) option that has been in the news of late is hardly a better choice than the unsuccessful trained and disciplined US and NATO troops. The Taliban may be taking advantage of the US administration’s difficulties in Afghanistan but they are enabled to do so by the disastrous results of the US invasion and occupation of that country in the wake of 9/11. Then US President George Bush used a sledgehammer to swat the al Qaeda fly after it attacked the US mainland in a first, Americans having perhaps been lulled into complacency because of two oceans on either side of the country, which they may have believed would protect them. The shock of 9/11 aroused a revengeful anger in the US, which Bush responded to by an invasion that arguably helped spread fundamentalist terrorism throughout the region and further abroad. His successor Barack Obama, elected on a platform of ending Bush’s two wars in Afghanistan and Iraq, blundered in announcing withdrawal deadlines from both Afghanistan and Iraq. All his opponents on these battlefields had to do then was wait him out. It is another matter that the ‘peace’ President Obama triggered two more wars on his watch in Libya and Syria. For the US now, the best option remains leveraging their much reduced presence in Afghanistan for talks and a negotiated political solution with the Taliban. However, learning from past mistakes, this is perhaps only possible if the Taliban are convinced that reduced presence or no, the US is in Afghanistan to stay until an acceptable political solution is hammered out. There is no more need to issue any further withdrawal deadlines or loud announcements of troops’ enhancement. In any case the former option should be contingent on the Afghan security forces’ incremental capability in denying the Taliban insurgents a victory.