Business Recorder editorial Feb 10, 2018

A first on multiple counts

In what is indisputably a landmark judgement, the Islamabad High Court (IHC) has directed the National Accountability Bureau (NAB) to investigate General (retd) Pervez Musharraf for alleged corruption while he was president. The IHC has thus redefined the power of NAB to investigate ex-military men, especially retired generals. The verdict came in a petition filed by Lieutenant Colonel (retd) Inamur Rahim in 2014 seeking a probe into Musharraf’s alleged corruption. The IHC judgement has cleared the ambiguity in the National Accountability Ordinance (NAO) 1999, based on which NAB had taken the position that it did not have jurisdiction to proceed against retired army officers despite receiving complaints of corruption against them. The petitioner in Musharraf’s case had asked NAB to conduct an inquiry into the allegation that the ex-General in his nomination paspers had declared assets beyond his known sources of income. Further, quoting Musharraf’s book In the Line of Fire, the petitioner stated that the former military ruler admitted to handing over a large number of people to the US in exchange for payment. Also, that Musharraf had injected corruption into the senior hierarchy of the armed forces by allotting them plots over and above their entitlement under the extant rules. NAB in a letter dated April 25, 2013 argued that Musharraf was immune from being proceeded against under the NAO as he was a member of the armed forces. The court, however, found General (retd) Pervez Musharraf fit to be proceeded against because he had held the constitutional post of president and had retired from the armed forces. The IHC found NAB had erred in interpreting the provisions of NAO 1999. Hence it declared NAB’s refusal through the April 25, 2013 letter “illegal” and “issued without lawful authority”. With this ruling, the IHC has laid down the principle that everyone, including retired military officials, can be tried under the NAO if found prima facie to have been involved in corruption. The court refused to hear Musharraf’s counsel since the general had already been declared a proclaimed offender who had run away abroad from the cases against him on dubious medical grounds.

While the IHC verdict relies on a close interpretation of the provisions of the NAO, it marks a first on multiple counts. So far, Musharraf had been indicted in a number of cases with treason, murder, etc, but corruption had not figured in the charge sheet against him till now. Even after retirement, very few ex-COASs have been held accountable for their sins of omission or commission in our history. There have been exceptions when a handful of senior armed forces officials faced NAB cases. Notable amongst them are Admiral (retd) Mansurul Haq (a former chief of naval staff), Major General (retd) Khalid Zahir Akhtar and Lieutenant-General (retd) Muhammad Afzal Muzaffar. Haq’s case ended in a $ 7.5 million plea bargain, while the latter two were found guilty in the National Logistics Cell (NLC) scam. But the weight of the track record in this regard is heavily tilted in favour of top military commanders and their families. It is by now part of urban legend that the families of Field Marshal Ayub Khan, General Ziaul Haq and Akhtar Abdur Rehman emerged from their family heads’ stints in power immensely wealthier. None of the above were ever put in the dock on this or any other more serious charge such as treason for abrogating the constitution, amongst other possible grounds for prosecution (General Yahya Khan was only declared a usurper years after he had presided over half the country being torn away). It has taken our justice system decades to firmly grasp this nettle in the case of Musharraf. Let us hope this does not prove a flash in the pan and provides the bedrock for holding the high, mighty and powerful to account, irrespective of the uniform they besmirched or the high office they enjoyed.

Business Recorder editorial Feb 7, 2018

A dysfunctional justice system

The federal cabinet, in a meeting chaired by Prime Minister Shahid Khaqan Abbasi, has approved the promulgation of the Costs of Litigation Act 2017 to ensure dispensation of inexpensive justice to litigants. The Act will come into force on March 1, 2018. High and unaffordable costs of litigation are but one facet of our justice system, which for all intents and purposes may be described as dysfunctional. A study conducted by the Supreme Court (SC) on the orders of former Chief Justice of Pakistan (CJP) Jawwad S Khwaja has revealed the startling fact that it takes an average of 25 years for a case to be decided. That revelation is bad enough but the other day a report stated that the SC had finally disposed of a case after 100 years! The findings of the SC study quoted above became the foundation for a joint petition by several lawyers before the apex court asking the National Judiciary Policy Making Committee to revise the national judicial policy and devise new rules for the lower courts to expedite citizens’ access to justice. Another study by one of these petitioners discovered that in Punjab’s civil courts, a case on average takes over three years and 58 hearings to be finally resolved. The petitioners have requested time limits be imposed on the lower courts to decide suits, petitions and appeals and activation of the high courts’ oversight role in ensuring access to justice. Independently of this, the Khyber Pakhtunkhwa government has started a campaign of advertisements claiming civil cases will henceforth be concluded in maximum one year. Our broken legal system compounds and prolongs the misery of litigants, not to mention exacerbating the costs of pursuing cases. It is also corrupt and inefficient, with the situation in the lower courts being described as dire. With over two million pending cases, out of turn taking up of cases with political hues by the courts using suo motu powers makes the denial of justice because of unconscionable delays that much worse. The strength of judges in the judicial system has failed to keep pace with a growing population. As a result, overburdened judges prefer to adjourn cases to avoid extended hearings. Lawyers on the other hand seek endless continuances. All this discourages petitioners and hikes up the costs of cases beyond affordability. Protracted court proceedings can also sometimes pose safety and security risks for petitioners and witnesses. This chaotic picture of our judicial system suggests a thorough overhaul is long overdue.

An insight into the complicated and fraught nature of the task of such an overhaul was provided by remarks by the outgoing Chief Justice Mansoor Ali Shah of the Lahore High Court (LHC) during a full court reference on Justice Shah being elevated to the SC. He said change or reform always runs afoul of the vested interests of an internal mafia in support of the status quo. The example he quoted was that of a pending Punjab Information Technology Board offer to develop a case management system that he accepted on taking over as the chief justice of the LHC. He revealed that although the Punjab government independently awarded a Rs 380 million contract for the purpose, some elements started a propaganda campaign that the contract had been unfairly given to a relative of Justice Shah. This revelation merely serves to underline how the present judicial system, with its built in interminable delays, adjournments and even stay orders that assume permanence, offers opportunities and openings for vested interests to reap the low hanging fruit of corrupt practices. Apart from the plea of the petitioners with which this editorial began, it is necessary for the superior judiciary, executive and, where necessary legislature, to put their heads together to reform the creaking judicial system along modern lines and ensure that the maxim ‘justice delayed is justice denied’ no longer can be applied to what our litigants and citizens have to suffer at present.

Business Recorder editorial Feb 6, 2018

Chinese at risk

In what appears to be a targeted attack, the managing director of a Chinese company has been shot dead in an upmarket area of Karachi. His colleague fortunately escaped injury despite the gunman emptying his pistol at them both. A passerby was wounded in the leg. The attacker then fled, remaining unidentified because the area’s CCTV cameras were not working. The Chinese company, Cosco Shipping, is not connected to any China Pakistan Economic Corridor (CPEC) projects but has been working in Pakistan since the early 1990s. On the day of the incident, the Chinese nationals had dispensed with the police security provided to them. This is not the first instance of Chinese nationals working in Pakistan ignoring the imperatives of their safety. Nor is this the first such attack on Chinese nationals in Karachi. They have been targeted in the metropolis several times before but fortunately none were killed. That cannot be said about Chinese nationals working on CPEC in Balochistan, where Gwadar port is set to become the heart and linchpin of the flagship project of China’s One Belt One Road (OBOR) ambitions. Police investigators surmise that the deceased’s car was probably tailed by the assailant, who either knew beforehand or discovered while following the car that there was no police security on the day. Although no claim of responsibility has surfaced so far, the involvement of some militant/terrorist organisation cannot be ruled out. In a typical ‘bolt the stable door after the horse has bolted’ mode, security has been beefed up in Karachi, the whole province of Sindh and hopefully throughout the country for foreigners, particularly Chinese nationals. Intelligence agencies are reportedly warning of the possibility of further attacks on Chinese nationals in Pakistan. By now, hundreds of Chinese are working in Pakistan on CPEC-related and other projects, and 4,000 police are reportedly deployed for their security. In a prescient warning in December 2017, China alerted its nationals in Pakistan of plans for imminent attacks on Chinese targets. The Chinese presence is growing as $ 57 billion has been pledged for CPEC, which initially was focused on building roads and power stations but is now expanding into setting up industries. All this development activity has already drawn in increasing numbers of Chinese nationals and as this huge investment starts to translate more and more into facts on the ground, is likely to open the floodgates of Chinese nationals’ induction inside Pakistan.

The tragic incident in Karachi indicates a number of areas in which improvement in the manner things are being done suggests itself. First and foremost, all Chinese nationals already in Pakistan, whether working on CPEC-related projects or not (since the Karachi attack indicates such fine distinctions are unlikely to enter the minds of those wishing to inflict harm on the Chinese), and those to come, need to follow strictly the protocols set out for their security and safety. This is certainly not the only factor that has led to the unfortunate loss of Chinese lives in Pakistan, but it is a requirement of the times. Second, given the challenges of combating terrorism and protecting not only our Chinese guests but our citizenry at large, we need to imbibe the absent culture of timely maintenance. The fact that CCTV systems set up at great cost to assist security and crime related investigations often are found dysfunctional indicates that whoever is in charge of monitoring these systems either is unaware of their dysfunctioning or does not care to have it rectified in timely fashion. Last but not least, the Pakistan government should have sent a message to Beijing expressing regrets for the killing of the Chinese national and assuring our friend that such incidents would as far as possible be prevented in future. Chinese friendship and support should not be taken for granted and needs to be treated with the respect it deserves.

Business Recorder Column Feb 5, 2018

The National Question in Pakistan

Rashed Rahman

February 5 for many years now is commemorated in Pakistan as Kashmir Solidarity Day. Rallies, marches, protests and discussions ensue on the right of self-determination for the long suffering people of Kashmir, as (partially) enshrined in the UN resolutions on the issue. However, when it comes to the internal problems in Pakistan on this right, or even the grievances and political, economic, social and other rights for nationalities alienated from the state on this basis, blinkers tend to descend over our collective eyes and rational discussion becomes virtually impossible, if not dangerous.

There is a need to understand the National Question in its historical context generally, and in relation to Pakistan’s experience in particular. Modern nationalism is a byproduct of the emergence of capitalism, initially in Europe, later globally. The identification of discrete ethnic groups having common origins, territory, history and culture as nations in their own right owed much to the desire of the capitalist class (bourgeoisie) of such groups to have control of the market on territory identified as the location of the particular ethnic group. In some instances, this nation-state formation proceeded peacefully, in many others through wars and conflicts with adjoining states or even internal conflicts before nation-states were consolidated in Europe. To prevent further conflict and wars, the Treaty of Westphalia in 1648 set the seal on the boundaries of the emergent nation-states in Europe.

The new system of capitalism proved the most dynamic in history till then and capital accumulation soon reached a point of where capital burst the relatively recently established national boundaries and spread to the rest of the world through colonial conquest and occupation in the rest of the world. In the Americas, southern Africa, Australia and New Zealand it took the form of settler colonialism. The successor European populations of these areas are the heirs of that initial settlers’ series of waves. In the rest of the world, colonialism remained an occupying power, extracting raw materials and supplanting local manufactures and products with the output of its own factories, thereby ruining the economies and lives of millions of ‘natives’.

When the wave of independence movements in the colonies after World War II eventually ended in the dismantling of the colonial system, the newly emerged independent states in these erstwhile colonies saw the light of freedom in states amongst whom many were not ethnically homogeneous. More often than not, a particular ethnic group dominated the power structures in the newly freed states, with considerable minority ethnic groups or nationalities contained within their borders. That multi-ethnic, multi-national construct fed into many internal conflicts and wars as these new states struggled to define and consolidate their national political structures.

In Pakistan too the postcolonial state inherited from British colonialism betrayed certain peculiarities that became the basis of conflict and civil wars in our 70-year-old history. The legacy of the British consisted in the over-determination and excessive power of state institutions the colonialists created and nurtured for the purpose of keeping the ‘restive natives’ quiescent. Two state institutions stood out in this regard: the military and the bureaucracy. In Pakistan’s case, because of historical peculiarities rooted in the colonialists’ concerns to keep control of the conquered peoples through loyalists, these two state institutions were largely, in fact overwhelmingly drawn from one province, Punjab. They were also inheritors and carriers forward of the mindset in which they had been nurtured of treating the citizenry as people to be kept under their control. After the first military coup by General Ayub, the bureaucracy steadily and incrementally lost ground to the military. This trend has reached its apogee by now.

Pakistan emerged on the map as a state made up of a mosaic of disparate and discrete ethnic groups and nationalities with aspirations to have their identities and rights duly recognized and respected in the new independent state dispensation. However, this became the source of much conflict inn our history, conflicts not reconciled even today. The basic reason for these conflicts was the clash between the aspirations of the constituent units of the new state (barring Punjab, ‘privileged’ by the composition of the military and ruling elite) and the overarching ideological straitjacket of one nation based on a common religion into which the ruling elite has tried to force the Pakistani polity.

Balochistan’s accession to Pakistan against its desire for independence or at the very least maximum autonomy became the first such conflict at the very birth of the new state. East Pakistan followed soon after in 1948 over the national language issue, which fed into and fuelled other political, economic and social grievances. The first has spawned repeated nationalist insurgencies in the face of the state’s failure to accommodate, to the extent possible, these grievances and aspirations. The current nationalist insurgency is the fifth in the last 70 years. The second ended in the breakaway of half the country, a majority of the population of undivided Pakistan, and the embitterment of relations with Bangladesh after a brutal military crackdown, civil war and finally Indian military intervention in 1971.

The loss of half the country should have been a moment for retrospection and the learning of lessons. Instead, the ‘episode’ of East Pakistan/Bangladesh was brushed under the carpet, ensuring no lessons were drawn or learnt. This inevitably resulted in a repetition of the same strong arm policy of quelling sub-nationalist aspirations by liberal use of the knout and bayonet. The 2010 18^th Amendment was a major step towards the constitutional devolution of powers to the provinces. Unfortunately, many of its provisions have still to be implemented in practice by the provinces.

The autonomy accorded to the provinces by the 18^th Amendment does not, even conceptually, mean that all the conflicts amongst the provinces and the Centre have been resolved. The simmering nationalist insurgency in Balochistan, the aspirations for just treatment of the Sindhi nationalists, and the continuing, albeit admittedly much weakened, ambitions of Pashtun nationalists point to this truth.

Pakistan’s minority nationalities’ struggles for autonomy and rights have remained part of the general struggle for a democratic order. The present faux democracy we have has served to muffle, if not silence, these voices. However, states that ignore such simmering discontents run grave risks, as 1971 proved. It is still not too late to revisit the national project by embracing the discontented nationalities, deal with their historically received and current grievances and consolidate Pakistan as a genuinely equal and just federal state in a democratic framework that not only helps resolve old conflicts but ensures these become a thing of the past. Complacency and indifference to these issues could one day come back to haunt the state and create an even bigger cataclysm than 1971.

rashed.rahman1@gmail.com

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Business Recorder Editorial Feb 3, 2018

Continuing Afghan imbroglio

The National Security Committee (NSC) met on the eve of a Pakistani delegation’s visit to Kabul. The NSC, comprising the top civilian and military leadership, and whose meeting was presided over by Prime Minister Shahid Khaqan Abbasi, blamed propaganda by hostile countries for Kabul’s accusations regarding Pakistan’s hosting safe havens for the Afghan Taliban and the Haqqani Network. Regardless of such accusations, the NSC vowed to continue positive engagement with Afghanistan. The normal bitterness in Kabul’s tone has increased of late after the series of deadly recent attacks that killed 140 people. In the wake of those attacks, a high-security delegation comprising the Afghan Interior Minister Wais Ahmad Barmak and National Directorate of Security chief Masoom Stanekzai visited Islamabad. Though both sides described that meeting as “helpful”, this did not extend to lessening the Afghan leaders’ acrimony. Afghan President Ashraf Ghani has stated that the headquarters of the Afghan Taliban is in Pakistan. He has demanded decisive action in this regard instead of mere verbal commitments. He also said that a list of individuals and networks involved in the recent attacks has been handed over to Pakistan. Our Foreign Office says the list is being examined and they will revert on this soon. Meanwhile the Foreign Office spokesman, Dr Faisal, once again trotted out the same narrative about Pakistan conducting actions against all terrorists without exception and repeated the claim that 27 Taliban and Haqqani Network suspects were handed over to Kabul in November 2017. This claim ‘surprised’ the Afghan ambassador in Islamabad and has been denied or at least downgraded to ‘common criminals’ by Kabul. Dr Faisal also pointed to the vast territory controlled by various terrorist groups in Afghanistan as proof that Pakistan was not to blame for its neighbour’s troubles. While the outcome of the visit to Kabul by the Pakistani delegation led by Foreign secretary Tehmina Janjua is awaited, it is perhaps useful to recount that COAS General Bajwa’s visit to Kabul on October 1, 2017 is what started an agreed process of discussions for cooperation of which this delegation’s foray is part.

It is amazing that our Foreign Office continues to repeat the same old narrative revolving around Pakistan not having any safe havens for the Afghan Taliban and Haqqani Network when the US and Afghanistan have openly refuted this and most if not all the rest of the world apparently does not believe it. The constant repetition achieves little except eroding further Pakistan’s word and credibility. There has even been a suggestion of late that if there are any Afghan terrorists here, they have melded into the Afghan refugees on our soil and therefore the sooner these refugees return the better. Now innocent refugees are going to suffer for things they are not responsible for. Although anger is growing in Kabul, Washington has an interesting dual attitude. US Joint Staff Director Lieutenant General Kenneth McKenzie has denied any US plans to conduct military operations within Pakistan. However, this probably means no American boots on Pakistani ground but does not rule out drone attacks, given that the US military has been authorized to eliminate safe havens in both Pakistan and Afghanistan. At the same time, US civilian and military officials keep reiterating their hopes for Pakistani cooperation against the Afghan insurgents. These messages have been “taken very seriously” by Defence Minister Khurram Dastgir Khan, especially the ‘elimination of safe havens’ bit. While Islamabad, Kabul and Washington continue to arm wrestle each other, the regional dimensions of the Afghan conflict are asserting themselves. China is reportedly seeking a military base in Afghanistan’s remote Wakhan Corridor to prevent Uighur militants of the East Turkestan Islamic Movement (ETIM) slipping into Xinjiang. The ETIM was formerly based in our FATA but has reportedly shifted to Afghanistan after the military operations by the Pakistan army to cleanse FATA of terrorist groups. China of course has more than just security on its mind. Its ambitious One Belt One Road initiative, of which CPEC is a part, requires peace and stability in the region, starting with Afghanistan, which Beijing says could join CPEC when conditions allow. Our friend China has been supportive of a peace process in Afghanistan for long. Pakistan must recalibrate its Afghan policy by abandoning notions of the Taliban and Haqqani Network providing protection to Pakistan’s interests. They have not always in the past and are unlikely to in future. It would be far better to resolve to not allow safe havens on our soil and use our influence on the Taliban to persuade them to join talks with Kabul and Washington to bring this longest running war since WWII to a peaceful end, which is in the interests of all stakeholders.