Business Recorder Editorial Feb 28, 2018

Politics and the judiciary

The Central Working Committee of the PML-N has unanimously and enthusiastically declared former prime minister Nawaz Sharif its Quaid (leader) for life while electing his younger brother and Punjab Chief Minister Shahbaz Sharif its interim president. The arrangement has a precedent. When Nawaz Sharif was in exile during the Musharraf regime, Javed Hashmi was made the president and Nawaz Sharif the Quaid. In the present circumstances, the move has been necessitated by, and is a response to, the Supreme Court’s (SC) striking down the provision of the Elections (Amendment) Act 2017 allowing disqualified Nawaz Sharif in the Panama case to become the party president. All the portents point to Shahbaz Sharif being elected the permanent party president by the PML-N’s General Council on March 6 to meet the deadline for a replacement permanent president. According to some reports, there was a discussion whether Nawaz Sharif should be called Rahbar (guide) or Quaid. It may be recalled that when old age and indifferent health forced Khan Abdul Wali Khan to relinquish the Awami National Party’s reins, he adopted the sobriquet Rahbar. However, the PML-N has plumped for Quaid, not the least to send a message to the party’s detractors and critics, especially the judiciary, that Nawaz Sharif has a special place in the hearts of his party colleagues and workers and nothing, not even the double disqualification of their leader by the SC, can change that. The advantage of naming Nawaz Sharif Quaid is that it is not a constitutional title, nor does it give Nawaz Sharif any formal power over the party’s affairs, thereby pre-empting any further hostile move against him from any quarter. While, therefore, ‘Quaid’ does not anoint Nawaz Sharif with any de jure position or powers, de facto he is and will remain the leader and final decision maker of the party. The enthusiasm of the PML-N members at this outcome was in sharp contrast with the ‘missing’ former interior minister Chaudhry Nisar. Contradictory reports speak of Nawaz Sharif’s reluctance to invite him to the crucial meeting because of his opposition to Nawaz Sharif’s confronting state institutions such as the judiciary (and allegedly behind them the military). He had also made disparaging remarks rejecting the possibility of working under rising political star Maryam Nawaz, the elder Sharif’s daughter. On the other hand, some reports say the invitation was indeed extended but Chaudhry Nisar chose to stay away. Now a flurry of statements indicates Chaudhry Nisar intends to ‘speak up’ on the issue in a couple of days. The reluctant Chaudhry did however congratulate Shahbaz Sharif, with whom he is said to see eye-to-eye on the need to avoid confronting powerful state institutions.

On the very day these developments were taking place, Chief Justice of Pakistan (CJP) Saqib Nisar ‘clarified’ during an unrelated case that he had no political agenda except ensuring the people were provided services and facilities that were their due. The CJP also expressed his reluctance to hear political cases but argued the SC had no choice when such cases were brought before the court. With due respect to the honourable CJP, it is possible to disagree with the latter statement. Well intentioned efforts to ‘do good’ may have landed the SC in controversial waters when the perception takes hold of judicial over reach and intrusion into the spheres of the executive and legislature’s responsibilities. Such dividing lines may become blurred sometimes, but our jurisprudence, at least until CJP Iftikhar Chaudhry’s restored court, tended to weigh more in the direction of judicial restraint so as to avoid controversies surrounding the boundaries of the division of powers that is the foundational construct of our Constitution. As the developments within the PML-N have once again shown, the judiciary cannot prevent political logic from taking its course. Only the electorate can truly decide the ultimate fate of political leaders, certainly not the judiciary, however noble its motives.

Business Recorder Editorial Feb 27, 2018

Quiet diplomacy

The US has reverted to quiet diplomacy to prevent a complete breakdown of the increasingly dysfunctional relationship with Pakistan. Lisa Curtis, Senior Director for South and Central Asia at the National Security Council returned to Islamabad for discussions with the Pakistan Foreign Office represented by Foreign Secretary Tehmina Janjua. While it makes sense that the effort should be conducted away from the glare of publicity, the choice of the US envoy could raise a few eyebrows. Ms Curtis is well known as a trenchant critic of Pakistan’s policy vis-à-vis Afghanistan even before she assumed her present responsibility. Nevertheless, her current visit is a follow up to her visit on October 12, 2017 when she met Ms Janjua and COAS General Qamar Javed Bajwa. That interaction yielded an agreement for both sides to continue their bilateral engagement at all levels and reinvigorate the relationship to achieve the objective of defeating terrorism. This time round, not even that kind of general statement has followed the interaction with Ms Janjua and her team, not the least, reports claim, because of Pakistan’s resentment at the role played by Washington in pushing Pakistan onto the Financial Action Task Force (FATF) grey list. Although the US pushed for Pakistan to be listed in an unprecedented move after the initial round of discussion at the FATF did not mention Pakistan, it must be admitted that Pakistan’s diplomacy there was off the mark. China, Turkey and Saudi Arabia initially supported Pakistan’s case but reports say after Foreign Minister Khawaja Asif prematurely broke the news that Pakistan had been granted a three month reprieve to get its counter-illicit financing of terrorism regime in order, Pakistan lost the support of China and Saudi Arabia and Turkey’s continued support could not prevent Pakistan being returned onto the FATF grey list after it had been taken off it in 2015. As it turned out, the steps Pakistan took to prevent this listing on the eve of the FATF conference such as taking over Jamaat ud Dawa (JuD) and its welfare front Falah-i-Insaniat’s assets proved unable to convince the US and its western allies about its sincerity. That is because such last minute steps were regarded as cosmetic and not necessarily permanent, i.e. reversible once the heat was off. It may be recalled that JuD is accused of masterminding the Mumbai attacks and is on the UN’s terrorism list. Meantime reports also speak of the continuing dialogue between the Pentagon and GHQ, represented by Centcom Commander General Joseph Votel and COAS General Qamar Javed Bajwa. This not only acts as a parallel conduit for exchange, it reflects the special and long standing relationship between the military entities of the two countries, informed not just by irritations over Afghanistan but leavened by the US’s desire to keep one of the Muslim world’s largest and arguably most battle hardened armies in the region on its side.

It is time to revisit our narrative about having wiped out all terrorists from our soil, denial of any safe havens here for the Afghan Taliban and Haqqani Network, and victimhood at the hands of terrorists. This narrative’s sell-by date seems to have run its course. It may persuade some in our domestic audience but by now finds little or no traction with the international community. Being placed on FATF’s grey list is not the end of the matter. Pakistan has now to present a plan to satisfy FATF regarding beefing up its anti-terrorism financing regime. If we fail to satisfy FATF, Pakistan could well end up on the organisation’s black list. The brave words of Miftah Ismail, our current virtual finance minister regarding no effect on our economy notwithstanding, such a development could make finding the finance to plug Pakistan’s looming budget and external deficits that much harder and costlier. That is not an outcome our economy can afford in its still precarious state. It is in Pakistan’s own best interests to now abandon the less than credible narrative we have been spinning and urgently review our policies vis-à-vis terrorism and proxies before the threatened financial crunch is upon us.

Business Recorder Column Feb 26, 2018

Prospects amidst uncertainty

Rashed Rahman

As the noose around the Sharifs tightens, the brothers have had an over three hours meeting at Nawaz Sharif’s Jati Umra residence to discuss the PML-N’s leadership crisis, strategy for the upcoming Senate polls and the National Accountability Bureau (NAB) cases against them. Topping the agenda according to reports was the issue of appointing a new party head after the Supreme Court (SC) struck down the provisions of the Elections (Amendment) Act 2017 relating to a disqualified person heading a party. In principle, the decision is to appoint Shahbaz Sharif as an acting president of PML-N until he can be formally elected by the General Council of the party after the Senate elections next month.

While cogitating these issues, the PML-N is also keeping a watchful eye on the general elections in July-August this year. Some observers are wondering if something similar to what happened to the PML-N Senate candidates in being declared independents by the Election Commission of Pakistan (ECP) after Nawaz Sharif was barred by the SC from being party chief may not be in store vis-à-vis the general elections too. For some, the comeback of Nawaz Sharif after his double disqualification (from the premiership and party head) through huge enthusiastic public rallies invoke memories of Zulfikar Ali Bhutto’s similar comeback after the military coup of 1977 that overthrew his government. That event ended in tragedy. Perhaps the powers-that-be have calculated there is no need to go so far this time. Instead, after his disqualification as premier, Nawaz and Shahbaz Sharif have been enmeshed in case after case by NAB, a time honoured tactic in our political history to harass political opponents and keep them twirling between courtroom appearances.

One could also speculate whether the arrest of Ahad Cheema (which has provoked a protest by the Pakistan Administrative Services) was of a piece with the attempt (stopped halfway) in recent years to knock out Asif Zardari’s ‘props’ in the shape of cronies and front men. After all, the powers-that-be have surely not gone to all the trouble of disqualifying Nawaz Sharif twice and keeping him and his family hopping between NAB cases only to let the PML-N win the Senate and general elections.

The ‘reduction’ of the Senate PML-N candidates to independents has opened the door to horse trading, according to some analysts. Buying Senate votes would be aimed at preventing PML-N garnering a plurality if not a majority in the upper house. If fair and free general elections are held in July-August, on present trends the PML-N is likely to win on the basis of its undiminished support in Punjab. Would the PML-N be allowed to be in power with control or at least influence in both houses of parliament for a new five-year term? That would seem to contradict the whole effort since the Panama case.

Veteran lawyer S M Zafar says the masses want an end to confrontation amongst state institutions. He believes the crisis can be resolved by taking the path of truth. He considers the SC verdict against Nawaz Sharif to be based on a weak argument that contradicts the people’s constitutional right to universal franchise, freedom of association and the right to form and choose leaders for political parties. The implication being that Articles 62 and 63, inserted in the Constitution by evil military dictator General Ziaul Haq for malign purposes, do not provide a solid foundation for the SC’s findings. Others have urged people to avoid taking political questions to the (currently willing to entertain) courts to avoid the double jeopardy of judicialising politics (already underway) and the politicisation of the judiciary (a trend embryonically beginning). Some like the Awami National Party’s (ANP's) Ehsan Wyne have once again reminded us that half the country was lost in 1971 because of a failure to respect the electorate’s mandate.

In Pakistan’s 70-year history, the tussle between unelected but powerful state institutions over representative ones has been a permanent affliction. Apart from brief, unusual periods, the former have dominated. Today, the scenario resembles nothing more than the triumph of the unelected state institutions over the representative ones.

Historically, the struggle for real democracy that emanated from the west with the advent of capitalism went through many twists and turns and even bloodshed before parliament’s supremacy was firmly established. The franchise too expanded gradually to overcome wealth, education and other restrictions alongside extending the vote to all sections of the people, women being the last beneficiaries, before universal franchise was accepted as the norm.

Countries like Pakistan could and should benefit from the costs and sacrifices of those who came before and finally produced the triumph of democracy. That history provides the foundations of a genuine democratic system. But if our political ‘model’ then tries to limit parliament’s supremacy or emasculate representative institutions through spurious juxtapositions such as that the Constitution (a creature that parliament is empowered to amend) stands above parliament, it lends the basic law of the land a mystical ‘permanent’ character that is belied by the power of parliament to rewrite it.

In the country that is considered to have given the world the ‘mother of all parliaments’, Britain, there is no written constitution. Everything is judged on the basis of evolved conventions and precedent. There, theoretically, parliament has the power to declare a man a woman and vice versa, even in the face of the facts. Of course we can only dream of such power to our parliament in what is emerging as a hybrid democratic system.

The continuing tussle between unelected and representative institutions that has remained the hallmark of our history seems set to be prolonged, exacerbating the present atmosphere of uncertainty that may itself explode in our faces if not handled wisely. There is too much precedent for this eventuality in our history for us to be sanguine about the instability that threatens.

The struggle for a genuine democracy that has consumed so much time, effort and blood in our history represents still the terrain on which future battles are likely to be fought. Liberal, democratic and progressive forces cannot but engage in this struggle for their own survival in the face of regressive unelected state institutions’ policies and non-state actors. More likely than not, this struggle will pave the path to progressive political, economic and social change too. Without it, our state and society are doomed to sink into anarchy, chaos and barbarism.

rashed.rahman1@gmail.com

rashed-rahman.blogspot.com

Business Recorder Editorial Feb 24, 2018

Disorder threatens

The allegedly humiliating manner in which civil servant Ahad Cheema was arrested and exposed before the media behind bars by the National Accountability Bureau (NAB) has got the entire Pakistan Administrative Services (PAS) up in arms. Seething with resentment at the treatment of their colleague, the PAS officers took the unprecedented step of summoning their colleagues from near and far throughout Punjab to hold a meeting and decide on their response. It turned out after the meeting that the PAS was divided on the best way forward. Three options were discussed without a conclusion: confronting NAB, continuing with their (partial) pen down strike or taking legal recourse. Although the offices locked by angry bureaucrats were later reportedly opened, even the partial strike caused paralysis and public inconvenience. The PAS is continuing its deliberations on which option is the best for them. Meanwhile the Punjab government has decided to approach the federal government to get its support to rein in NAB, a federal institution, and persuade or compel it to adhere to legal procedures and norms and not to humiliate civil servants. Needless to say the Punjab opposition, mainly the PTI, railed against the PAS for its protest and lock out. While no one can oppose accountability across the board, NAB since its new chairman Justice (retd) Javed Iqbal took over, seems in a hurry to wipe out the memory of his predecessor’s alleged foot dragging in cases against the Sharifs, going so far as to treat civil servants as alleged collaborators or front men of Punjab Chief Minister Shahbaz Sharif. Whether there is any truth in this perception or not only proper investigation would reveal, but hasty and seemingly arbitrary actions have set the PAS against such treatment and threatened the Punjab administration with disruption if not paralysis. Surely there must be a better, more legally defensible way to achieve NAB’s objectives without throwing Punjab into administrative turmoil.

Of course this targeting of the PAS by NAB can only be seen in the backdrop of what the Sharifs are undergoing at the hands of the judiciary. Ousted prime minister Nawaz Sharif has intelligently used the victim card to great effect, if the size of the public rallies he has been addressing since his departure from office is any guide. Having been disqualified from the prime ministership and then disallowed to head the PML-N by the Supreme Court (SC), Nawaz Sharif is now preparing his party and supporters for the real possibility that he will be disqualified for life by the SC in the third verdict in his case expected any day now. The two verdicts so far, disqualification and being disallowed to be party head, Nawaz Sharif has described as ‘pre-poll rigging’, not the least because the SC second verdict’s short order declared the judgement would apply with retrospective effect. Normally the courts accept the balance of convenience in pronouncing verdicts with prospective effect, thereby giving protection to acts already done in good faith. One result of the retrospective verdict has been the rejection of all the PML-N candidates’ papers signed by Nawaz Sharif as (then) party head. After the Election Commission of Pakistan (ECP) turned down the option of those candidates’ nomination forms being signed by PML-N Chairman Raja Zafarul Haq and instead allowed the candidates to stand as independents (a decision that is considered controversial in some quarters), fears are being expressed that this may open the floodgates to horse-trading, of which rumours and allegations are already doing the rounds. Consciously or otherwise, the campaign by the powers-that-be to tighten the noose around Nawaz Sharif and his family runs the risk of unleashing disorder and institutional conflict that may give birth to disorder and worse. Surely that is not an outcome anyone in their senses would consider good for democracy or the country.

Business Recorder Editorial Feb 21, 2018

Russia’s IS alarm

Pakistan’s Foreign Minister Khawaja Asif and Russian Foreign Minister Sergey Lavrov echoed each other’s positions in a joint press conference in Moscow on February 20, 2018. They announced the setting up of a commission for promoting military cooperation while expressing alarm over the growing footprint of Islamic State (IS) in Afghanistan. Even more alarming to both sides was the seeming indifference of the US-led NATO forces to this development in Afghanistan. The alarm was prompted by the possibility of IS deploying near the Pakistan border in the case of Asif, and in the north of Afghanistan for Lavrov. Asif feared IS could try to destabilise neighbouring Pakistan while Lavrov was concerned that the IS presence could spill over into Central Asia and eventually Russia itself. The former was voicing concerns at a new element of terrorism finding its way into Pakistan while the latter, whose country has overcome a Chechnyan insurgency after years of bloodshed, sees the resource base and ability of IS to recruit locals on a franchise basis as a new and real threat to the region as a whole. Both had complaints about the US failure in Afghanistan. Asif resented Pakistan being scapegoated for Washington’s failure, Lavrov reiterated the received wisdom that only a negotiated settlement through talks offered any hope of a solution to the Afghanistan quagmire. Lavrov went on to describe US President Donald Trump’s ‘new’ strategy for Afghanistan as lacking potential. That strategy is playing out as cutting off civil and security assistance to Pakistan and forcing the Taliban to the negotiating table through hoped for victory on the battlefield. There is little doubt that the US embarked upon mission impossible when it invaded and occupied Afghanistan after 9/11. The inherently difficult enterprise of subjugating Afghanistan, which has historically fought invaders to a standstill and retreat through irregular warfare, proved even more perilous because the Afghan Taliban enjoyed refuge inside Pakistan.

The internal situation for the unity government of Afghan President Ashraf Ghani is not bright either. One northern governor has gone after initially defying the president, another is sticking to his guns and refusing to go. The internal fissures of the government add to the angst over loss of about 40 percent territory to Taliban control. If Bush invaded Afghanistan without knowing what he was getting into, that initial mistake was compounded by Obama’s announcing a major troop withdrawal prematurely. Neither event deterred the Afghan Taliban from pursuing their protracted guerrilla war strategy. Despite IS being viewed by the Taliban as an interloper in Afghanistan, there has been little effort by the Americans or Kabul to try and take advantage of this rivalry in the insurgent camp. Nothing describes the US approach better than Einstein’s famous saying: doing the same thing over and over again (even more intensely) and expecting different results. Overthrowing the Taliban government through shock and awe has proved easier than winkling out the insurgency or even being able to point towards significant progress, militarily or politically. In the latter sphere falls the consensus that only a negotiated settlement can end the Afghan conflict, thereby denying IS the fertile soil into which it is inserting itself. How to bring that about however, is a thorny conundrum. Pakistan has been simultaneously criticised for allegedly supporting the Afghan Taliban while being pressured to bring them to the negotiating table. Given the developments on the Afghan front in recent days with the Taliban and IS claiming deadly attacks in Kabul and the US retaliating by cutting off aid to Pakistan and threatening a more muscular battlefield approach, Washington lacks negotiating peace partners, certainly the Taliban, arguably even Islamabad now. If the conflict does not yield to peace negotiations because of the tangled web of competing interests, the Afghan war, already the longest in the US’s history, seems destined to continue, a situation precisely that has let IS in the door in the first place, and whose continuance is the best IS can hope for after its defeat and retreat from Iraq and Syria.