Daily Times Editorial Sept 1, 2012

One-man commission The Supreme Court (SC) two-member bench hearing the Arsalan Iftikhar versus Malik Riaz Hussain case has come up with a most surprising judgement regarding the investigation into the alleged Rs 342 million business deal between the two parties. It may be recalled that when these allegations against the son of Chief Justice (CJ) Iftikhar Mohammad Chaudhry surfaced some months ago, and the SC, taking suo motu notice, constituted a three-member bench headed by none other than the CJ himself to hear the case, this caused considerable consternation amongst legal circles and the public regarding the appropriateness of the CJ heading a bench in a case involving his own son. Wisdom mercifully quickly set in when adverse opinion was voiced against this decision, and the CJ wisely, albeit belatedly, decided to recuse himself from said bench. On June 14 the residual two-member bench had announced a reserved judgement referring the matter to the Attorney General (AG) to set the state machinery in motion for an investigation into the matter. The AG then wrote to the National Accountability Bureau (NAB) to initiate the investigation. NAB constituted a Joint Investigation Team (JIT) for the purpose. Prima facie this seems perfectly reasonable, legal, and within the rules. The SC however, in its latest judgement on August 30 has found grave flaws in the procedure adopted by the AG. He has been put on notice by the bench to explain his handling of the matter, which in the court’s opinion went far beyond the scope of its June 14 order. The SC has also castigated the AG for not revealing before the bench that he had at some point represented Malik Riaz Hussain in his professional capacity as a lawyer. It should also be recalled that the SC had stopped the JIT from proceeding in the case on the grounds that the senior police officers who had been inducted into the JIT, SP Faisal Bashir Memon and DSP Tahir Malik, stood accused by the court of in one case providing undue ‘protocol’ to Malik Riaz Hussain on the occasion of his appearance before the SC, and generally of submitting false, dishonest or deliberately misleading statements during the proceedings or inquiries ordered by the court. On this basis, the SC wants disciplinary action taken against these officers. Not only that, the SC labels NAB ‘biased’, therefore unable to conduct the probe free of the perception of partiality or lack of competence. The case investigation has therefore, including all the record in NAB’s possession, been transferred by the SC to a one-man commission comprising Dr Shoaib Suddle. Now issue can be taken with this judgement at a number of levels and on a number of contentious decisions contained therein. First and foremost, the SC seems to have taken recourse to speculative opinion about NAB’s bias or competence before the fact has been established in any reasonable manner. The AG’s representing one party professionally is hardly conclusive proof of bias. The judgement’s castigation of the police officers in question seems to be based purely on behaviour or ‘body language’ evident in video evidence placed before the court by Arsalan’s lawyers taken from the SC’s CCTV cameras. The placing of this video evidence by a party to the case aroused a great deal of concern even then as to how one party could get hold of internal SC footage not normally available to any member of the public. Second, did the footage establish beyond reasonable doubt or at least contention that the police officers betrayed bias or sympathy towards the other party, Malik Riaz Hussain? Could it not be argued, for example, that they were simply showing courtesy to one of the litigants or even ensuring their safety? On the other hand, the setting up of another (one-man this time) commission to investigate will again become controversial just as the setting up of the Memo Commission by the SC troubled many legal minds. Fingers may now be pointed that this is another case of the SC assuming to itself the powers of an investigation agency, which it is not mandated to do, and which is the exclusive preserve of the executive. Such commissions of inquiry are normally set up by the government under the Commissions of Inquiry Act. This new ‘jurisprudence' by the apex court is bound to arouse controversy, possibly face legal challenges, and reinforce the opinion that holds that the SC is either unable, or seen to be unable, to do impartial justice in a case involving the CJ’s son. For this negative perception, the SC has no one to blame but itself.

Daily Times Editorial Aug 30, 2012

NAM Summit preparations Iran’s preparations for the Non-Aligned Movement (NAM) Summit that opens today in Tehran for two days of discussions on a host of issues saw a Ministerial Meeting on its eve, addressed amongst others by Pakistan’s Foreign Minister Hina Rabbani Khar. Ms Khar stressed that the growing confrontation over Iran’s nuclear programme threatens further instability in the broader region. She emphasised that only diplomacy and dialogue should be used to resolve such contentious issues, words of wisdom likely to fall on deaf ears in western capitals demonising Iran, as well as in Israel, leading demands to bomb and destroy Iran’s nuclear facilities to pre-empt the development of nuclear weapons. Tehran has consistently refuted such allegations, stressing that its programme is for purely peaceful purposes. That cuts no ice with Iran’s accusers, flying in the face of the facts and wiser counsel on the peaceful course to follow to resolve this conundrum. At the heart of the current phase of the controversy is the Parchim nuclear facility, allegedly used for explosives experiments thought to be preparations for nuclear explosions. The International Atomic Energy agency (IAEA) has been denied access to the facility because Iran wants the IAEA to first share with it the documentary evidence on the basis of which the suspicions about Parchim have been doing the rounds. The IAEA has declined to share this documentary evidence on the plea that it has received this from foreign intelligence agencies on the promise of confidentiality. In other words, the ‘evidence’ on which Iran is charged with seeking to develop nuclear weapons is denied to it. Not even in common jurisprudence would this be considered acceptable, let alone at the level of international issues and diplomacy. The unnamed foreign intelligence agencies need no flight of imagination to be identified. The western countries, led by the US, and Israel would fall into the fold of the usual suspects. These very intelligence agencies were behind the manipulation of the IAEA and the alleged nuclear weapons (or weapons of mass destruction, including gas) Iraq under Saddam Hussein was supposed to be stockpiling before it was invaded the second time, with an illegal toppling of the regime and the eventual hanging of Saddam Hussein by a kangaroo court. How then can objective observers place any credence on the ‘confidential’ intelligence gathered by the IAEA vis-à-vis Iran? This would be a bit like repeating in the case of the current conflict in Syria the mistaken concession to the west to intervene in Libya in support of anti-Gaddafi forces in the name of the ‘Right to Protect’ and ending up with the overthrow of the regime and Gaddafi's brutal murder. Objective reports say Iran has achieved 20 percent enrichment, still a long way from the 95 percent required for weapons grade uranium. The whole hullaballoo about Iran’s nuclear programme is a thin fig leaf for the desire on the part of a motley alliance of the US-led west and Israel, along with, ironically, reactionary Arab regimes stoking ant-Iran, anti-Shia strife in the region. The very act of holding the NAM Summit by Tehran, expected to gather over a hundred countries and attended by the UN Secretary General, is a slap in the face of all those seeking to isolate Iran and demonising it for the purpose of overthrowing the regime. Like it or not, the principles of peaceful co-existence and non-intervention in the internal affairs of sovereign states are the only way to prevent a conflict in the region, which could all too easily descend into sectarian strife. NAM may have weakened over time, especially after its raison d’être, the cold war became history, but it can still exercise a positive influence in a world increasingly driven into conflict because of the ambitions of the triumphal victors of the cold war to reshape the world according to their desires and hegemony. The NAM countries and the rest of the world not in thrall to the unholy alliance of the west, Israel and reactionary Arab regimes against Iran must stay the trend towards intervention in sovereign countries to bring in regimes of choice. That way lies greater conflict and war, something the world could do without in the middle of other, more pressing issues for the future such as the present economic woes and the task of development for the prosperity and well being of humankind.

Daily Times Editorial Aug 25, 2012

Post-alliance future In the absence of an ambassador after Cameron Munter resigned and went home, a senior US diplomat had to visit the foreign office to receive a demarche regarding the drone strikes over Eid. The diplomatic protest reiterated Pakistan’s position that the drone strikes were a violation of international law and Pakistan’s sovereignty. Of course, Washington as usual turned a deaf ear. Estimates of militants and innocents killed in the strikes vary so widely that it is not possible to come to definitive conclusions about the strikes and their efficacy in degrading extremist organisations such as al Qaeda and others. One estimate by the New America Foundation, for example, holds that there have been 30 drone attacks this year so far in which 207 people have been killed. Long War Journal says none of these were innocent civilians. It goes on to assert that there have been 30-40 civilian casualties a year in previous years, but says improved targeting techniques have reduced collateral damage. On the other hand, 2,370 Taliban and al Qaeda leaders and operatives have been killed since the start of the drone war in 2004, while a total of 138 civilians were reportedly victims of these attacks. If the issue of drone attacks reflects the cracks in the US-Pakistan alliance, the two countries have received some ‘insider’ advice from former ambassador to the US Husain Haqqani. Speaking in Washington, he has likened the relationship to a bad marriage and advised both sides to seek instead of the present dysfunctional so-called alliance, a more realistic interaction without illusions or unreal expectations. His logic seems to rest on the divergence of interests of Washington and Islamabad, and hence the logical solution of lowering mutual expectations to a level that accords better with reality. It may be recalled that on one of her visits to Pakistan, US Secretary of State Hillary Clinton heard from a questioner that the US, as far as Pakistanis were concerned, acted like a bad mother-in-law. To Ms Clinton’s credit, she enjoyed the lighthearted comment immensely. But it must be admitted, the descriptions by Husain Haqqani and Ms Clinton’s interlocutor were not so wide of the mark. The underlying reason is the divergence of interests between the two ostensible allies, an inherent condition that was glossed over after 9/11. According to Husain Haqqani, Pakistanis should not harbour unattainable desires to have the US back them against India, and the US should not think it can wean Pakistan away from supporting jihadi groups seen as unconventional force multipliers in Islamabad’s strategic calculations. Then Mr Haqqani reminds his audience that strategic policy in Pakistan is still in the hands of the generals, not the civilian rulers. He ends by calling for a clear explanation of Osama bin Laden’s presence in Abbottabad, who knew of it, and what this means. Meanwhile another think tank seminar in Washington on the same day heard on the issue of drones that the US had to contend with three specific groups: enemies in common with Pakistan, allies of Pakistan who are enemies of the US, and militant enemies of Pakistan that are of little strategic interest to the US. As a result, Pakistan will cooperate with the US on some (convenient) targets, while undermining joint efforts on others. With this kind of broth underlying the ‘alliance’, even ‘bad marriage’ is inadequate as a description. Both sides seem wary and weary of trying to persuade the other, especially since the 2014 withdrawal date looms. The strategic dialogue between the two seems nowhere in sight so far. The US/ISAF will go from Afghanistan, but it would be a mistake for Pakistan to indulge in premature triumphalism at having reduced one more superpower to its knees in that battlefield. Pakistan’s abiding national interests in an increasingly connected and post-cold war non-aligned world (with the possible exception of NATO) lie in keeping all options open, befriending all countries of the world, especially the region, and taking full advantage of its strategic location to realise its potential as the region and the world’s trade and energy corridor linking the Asian interior landmass to the rest of the globe. To achieve this, Islamabad needs as many friends as possible, everywhere. Let that be Pakistan’s 21st century vision and goal for stability, development, prosperity.

Daily Times Editorial Aug 19, 2012

General Kayani’s ‘hedging’ Ever since ISI chief Lieutenant General Zaheerul Islam’s visit to Washington, the western press and US Defence Secretary Leon Panetta have been saying that COAS General Ashfaq Pervez Kayani has committed to ISAF Commander General John Allen that the Pakistan army would launch joint operations with the US in North Waziristan. General Kayani, through an ISPR statement after meeting CENTCOM Commander General James N Mattis in Islamabad, has clarified that no such commitment has been made. General Kayani was at pains to underline that if and when the Pakistan army would conduct an operation in North Waziristan, it would be in the light of Pakistan’s and its military’s own considerations. The decision, its timing, etc, would be a Pakistani one, not under any external pressure, whether from the US or anywhere else. The statement went on to make a clear distinction between “coordinated actions” and “joint operations”, the former implying separate actions on each side of the border by either side, the latter joint operations on either side of the border. As far as the Afghanistan side of the border is concerned, it is understandable that the Pakistan army would not like to get embroiled, not the least because it apprehends the reaction from the Afghan Taliban, primarily the Haqqani network, which arguably has yet to be jettisoned by the Pakistan army as a proxy or ally despite its providing safe havens on Afghan soil to the Tehreek-i-Taliban Pakistan (TTP), at war with the Pakistani state. On the other hand, joint operations on the Pakistani side of the border would imply American boots on the ground, something the Pakistan army has clearly spelt out after the Abbottabad raid is a red line it would not allow to be crossed again. General Kayani also said a joint operation, with all the above attendant meanings, would not be acceptable to the people or army in Pakistan. In this context it is pertinent to recall the reservations voiced by PML-N Leader of the Opposition Chaudhry Nisar the other day on any North Waziristan operation per se. Also, reports speak of uneasiness amongst some of General Kayani’s own aides, apprehensive of the fallout in terms of increased terrorism within Pakistan in the event of stepping into the militant hotbed. While all this is not entirely unknown and even to some extent understandable, there are problems with the formulation of the COAS. ‘Public’ sensitivities and ‘strategic assets’ considerations aside, ‘coordinated actions’ would fail to do some things crucial to success. First and foremost, such actions would fail to stop cross-border attacks both ways, the Haqqanis being at freedom to attack in Afghanistan from FATA, and the TTP at liberty, as it has been doing of late, to attack Pakistani security forces from Afghan soil since neither would be pressed by the respective allied forces on either side. Two, such actions would fail to seal the border to prevent the Haqqani network fighters and the TTP from fleeing across the border whenever under military pressure. A parallel may be drawn with the long-drawn-out operations the Pakistani military has been conducting for years in FATA. Piecemeal, Agency-specific operations have failed to seal the escape routes of the militants to other Agencies. When under pressure, they simply move to other Agencies and live to fight another day. Similarly, if there are no ‘joint operations’, at least to the extent of having an anvil on one side to the hammer of the respective military force pressing ‘its’ enemy, the porous border will continue to offer the mother of all escape routes both ways. The conundrum we have to revisit is the contradiction at the heart of the military’s policy in FATA in general and North Waziristan in particular: you cannot hunt with the Haqqanis and against the TTP when the two are collaborating with each other. And that brings us to the heart of the matter: if you persist with proxies to project foreign and security policy interests, the terrorist bug in your own home can never be crushed.

Daily Times Editorial Aug 17, 2012

Transparency and accountability Federal Information Minister Qamar Zaman Kaira, while briefing the media after a cabinet meeting, revealed that a proposal that all public servants should declare their assets was under discussion. The proposal dates from 2011 but has only now been taken up by the cabinet. It is argued that if politicians have to declare their assets, so should generals, judges of the superior judiciary and senior bureaucrats. So far, as part of the discourse on accountability in public life, this has been an idea mooted often, but relying as it does on just moral incentives for individuals holding high state office, has failed to elicit anything resembling an adequate response. This indicates that moral imperatives alone will not do, and that legislation will be required, which reportedly is under consideration in the cabinet. However, before the proposal can be take up as part of the legislative process, the cabinet has asked the Establishment Division to submit a report to it on the issue. Only after that report is received will the cabinet, after perusing it and conducting due deliberations, decide whether to proceed on the (necessary) legislative path. The only concern is whether an excellent idea such as this one will see the light of day as a bill or even Act before the gathering clouds of the coming general elections are upon us. There is no gainsaying the fact that tales of corruption have been part of our life and history. The finger of suspicion and/or accusation has been pointed at just about everyone, ranging from military dictators and their cohorts, powerful bureaucrats who know the rules and laws inside out and have proved adept at manipulating these to their advantage, and members of the superior judiciary who have stood accused in the past of misusing the perks and privileges allowed to them under the rules, especially when it comes to plots of land. This is not to miss out the even greater weight of accusation against politicians, only to point out that hardly any institution of power players/stakeholders has escaped the taint. What this does in the case of politicians is that people’s hopes and expectations from them get transmogrified into disillusionment with democracy per se, although poor democracy may not be so much to blame for this perception as elected politicians themselves. Nevertheless, politicians have many layers of accountability hanging over their heads, not the least of which is the necessity of returning to the electorate again and again on their track record of performance in office. Not only this, politician are now required by law to declare their assets annually, failing which they are denied entry into the electoral race. Arguments have regularly been produced by powerful institutions like the military and judiciary that they have their own internal systems of accountability. Since these are ‘in-house’ systems, they lack the advantage of transparency. The recent fracas between parliament’s Public Accounts Committee and the Registrar of the Supreme Court, in which the latter has refused to submit the accounts of the Supreme Court or appear before the Committee has caused much anguish to those who cherish the supremacy of parliament over all other institutions. What a law requiring all public office holders to declare their assets would do would be to enhance the credibility of honest incumbents and expose the shady or grey areas of those not fully coming up to the highest and most desirable standards. Real accountability could then be possible and credible. Some elements viscerally opposed to the present government may want to paint this proposed law as motivated by a desire of upmanship in the current state of conflict between the government and the judiciary. Bu that would be too narrow and partisan a view. If the wider scope of asset declaration, encompassing powerful and hitherto immune to accountability let alone transparency institutions are brought into the net of the proposed measure, it can only be to the good of a clean, accountable, transparent state and society. It would set a precedent that may well begin to change the ‘slippery’ slope down which honesty and integrity have slid over the years.

Political dialogue Addressing an Independence Day flag raising ceremony in Islamabad on August 14, Prime Minister Raja Pervez Ashraf extended an olive branch to all political forces, particularly the opposition. The prime minister invited all political forces to enter into a dialogue regarding the coming general elections and a consensus caretaker setup. The prime minister said the government wanted to take the opposition into confidence for holding impartial and transparent general elections. He pointed to the consensus appointment of a chief election commissioner, Justice (retd) Fakhruddin G Ebrahim, implying the same sort of consensual approach should attend the government’s efforts to bring all the political forces on board, ensuing their participation in the elections to play their role in the continuity of the democratic system. He generously (given our political culture and practice of many years) acknowledged the role of the opposition in this enterprise and advised the opposition not to just focus on criticising the government but instead come up with positive suggestions with a constructive approach so that the challenges of development could be met. He underlined the importance of a dialogue with the opposition on all issues of national importance. The prime minister was at pains to deny any intent to have a confrontation between the pillars of the state, including the judiciary, and reiterated that the government was following Benazir Bhutto’s legacy of a policy of reconciliation. He said the government wanted a transfer of power in a democratic manner, which would go a long way towards consolidating the democratic order. He pointed to the patience with which the government has been and still accepts criticism. The objective of this patient approach he said is to ensure an environment of understanding and harmony, something our divided and fractured society badly needs. It must go to the credit of the PPP-led coalition government in power since 2008, through two prime ministers, that it has consistently upheld the philosophy bequeathed by the late Benazir Bhutto that what Pakistani state and society critically needed was reconciliation between differing points of view rather than open confrontation that had in the past (particularly the democratic interregnum of 1988-99) provided opportunities for the ‘third force’ to intervene. President Asif Ali Zardari, since coming to office, has been at the receiving end of more criticism and muck thrown at him than any president in Pakistan’s or any other country’s history. Yet he has, occasional outbursts at public rallies notwithstanding, exercised superhuman patience and avoided retaliation. This has had the salutary effect of tiring out his critics, who of late seem to have run out of breath, or be seeking alternative means to somehow rock the boat and see the back of the government and president entire. However, where these ‘soldiers of fortune’ in the media and the polity have fallen short is in their understanding of the real political change that has taken place, and is continuing. This represents nothing less than a tectonic shift in the political culture of the country towards a realisation that given our chequered and tragic history, there is no other way to ensure the stabilisation and progress of Pakistan except through continuity in the democratic political process. If that process throws up governments not to the liking of some, they have had perforce to learn to be patient despite their best and often vitriolic efforts and let the democratic political process run its course. There is no gainsaying the increasingly evident and accepted in larger circles fact that the convergence amongst the political parties on the way forward for the country resting on democracy is becoming the new verity. Unlike the 1990s, there have been no attempts by the opposition to run to GHQ to topple the incumbents and, except for a brief and unproductive interlude in the memo case, a reluctance to drag the judiciary into a role for which it is neither fit nor is justified by any constitutional or democratic principle. This points to the system groping its way, albeit haltingly, towards a maturity and settling down long overdue.

Daily times editorial Aug 14, 2012

Backlash against the judiciary Ousted Prime Minister (PM) Yousaf Raza Gilani has delivered a strongly worded message to our overactive judiciary. He says if another PM is ousted in similar fashion, the PPP will not take it lying down and will resist, since it considers the repetition of such a move would be tantamount to destabilising, dividing, and arguably disintegrating the country. He went on to sarcastically remark that if the judiciary wants to take all the decisions, we should dissolve parliament, send all the elected representatives home, and let the judiciary take charge of the government. He said he had appeared before the judiciary as a mark of respect, but this was not reciprocated. He accepted the court’s decision for the sake of democracy and the country, he added. He left the question of appearance before the Supreme Court on its summons to his successor, Raja Pervez Ashraf’s judgement. It was time, Gilani argued, for the judiciary to correct past mistakes such as the ‘doctrine of necessity’, which contributed to the disintegration of Pakistan in 1971. The judiciary was not a political party, he continued, and therefore should not have (or be seen to have) any political agenda. The judiciary’s activism could trigger an intervention by a ‘third force’, he warned. The contempt law was only being used against politicians who respected the verdicts of the judiciary, and not against those elements or forces that didn’t give two hoots for its orders. He said further that he would suggest to the PPP a train march from Lahore to Karachi in support of the supremacy of parliament, and implied that if even that did not work, the party would resort to street protests and take the matter to the people. The MQM chief Altaf Hussain has added his voice to those troubled by the present scenario of confrontation between the government and the judiciary. Addressing a rally of his party in Karachi, Altaf Hussain appealed to both sides to ‘accept’ each other and reconcile for the sake of democracy and the country. And in an interesting aside, the country that gave the contempt of court law to the world, dating from the 14th century, the UK, is contemplating repealing it and modifying it to match modern day requirements. Unlike Chief Justice Iftikhar Mohammad Chaudhry’s contention that the concept of the supremacy of parliament inherited from Britain was ‘out of date’, the country that is considered the mother of all parliaments finds the ancient contempt law actually out of date. The reasoning behind the proposal is both conceptual as well as based on the experience gained from practice. The contempt law as it stands in the UK has not been used since the 1930s. And yet the judiciary in the UK is held in the highest esteem. That is because the prudence and restraint within the parameters of the law practiced by it has helped over time to accord it the respect and dignity it deserves. Our judiciary too could take a leaf or two out of the book of the British judiciary. Unfortunately, as former PM Gilani also pointed out, our judiciary has a great deal to rectify on the basis of its track record. Endorsing military coups and justifying usurpers of power, taking oaths under PCOs and allowing military dictators to amend the constitution at their whim and will are all wrongs that need to be relegated to a closed chapter. The defiance of the will of a military dictator by Chief Justice Chaudhry galvanised the country in a movement that finally led to the ushering in of democracy (albeit with the tragic loss of Benazir Bhutto along the way) and the exit of General Musharraf. The restored and increasingly independent judiciary has high hopes of the people riding on it. This is a great responsibility, but it must and can only be fulfilled by adhering not only to the letter of the law, but also its spirit and élan. Unfortunately, the perception is growing of partisanship by the present restored judiciary. This is not only bad for the incumbents, it could cause permanent damage to the respect and dignity of the judicial institution. The best course under the circumstances, before the growing backlash against the judiciary assumes critical mass, would be to exercise judicial restraint and try to find solutions to the impasse with the government that best suits the interests of the country and the fraught circumstances in which it finds itself at present.